Higher Ed Censorship Becoming More Discreet, PEN Reports

The number of proposed bills aiming to censor what college and K-12 instructors can teach has declined since 2023—but more insidious legislation that indirectly impacts what professors can teach, including by weakening tenure and faculty governance, has become more common.

According to PEN America’s 2024 “America’s Censored Classrooms” report, a total of 29 bills aimed at dismantling the “autonomy” of higher education were proposed over the past year across 12 states; five were passed. The most common categories of proposed bills were ones that sought to restrict diversity, equity and inclusion; mandate institutional neutrality; or take curriculum control out of faculty’s hands.

In fact, bills targeting educational autonomy were proposed even more frequently this year than overtly censorial bills. Jeremy Young, the Freedom to Learn program director for PEN America, said in an interview that two key factors may have led to this shift.

“One is that the explicit speech restrictions have run into some trouble in the courts … and the other thing that’s happened is, it’s been pretty clearly demonstrated through the midterm elections and the rise and fall of the Ron DeSantis presidential campaign that these explicit speech restrictions are not particularly politically popular,” Young said. “So, what we’ve seen is a sort of move away not only from explicit speech restrictions, but also a move away from the sort of political showboating that surrounded these types of bills in the last few years.”

Ellen Schrecker, a scholar of McCarthyism and a professor emerita of American history at Yeshiva University, said that attacks on key systems within the university are concerning because they decimate the institutions’ ability to do what they are meant to do: provide an education.

“Faculty governance means that faculties have the main say—not total say, but the main say—over the academic side of the work of their institutions. They don’t appoint football coaches, obviously, but they should be responsible for appointing new faculty members to faculty, to their department, because they have the disciplinary expertise to do that and very few governors and trustees do,” she said. “What we’re talking about is maintaining the intellectual standards of the university, and that is done through faculty governance.”

This type of legislation can also be more difficult to combat because it targets elements of the university that are often obscure to the general public, experts said.

“Accreditation is a great example, because accreditation sounds like a narrowly bureaucratic issue,” said Brad Vivian, a professor at Penn State University and the author of Campus Misinformation: The Real Threat to Free Speech in American Higher Education (Oxford University Press, 2022). “All of these [bills] are about gumming up the works of how universities normally operate, making them less independent centers of education and making them more liable for political interference.”

The number of “educational gag orders”—meaning bills that restrict the discussion of certain terms or ideas in the classroom—decreased from previous years, the PEN America report found. Only 27 such bills targeting higher education were introduced this year, compared to 31 in 2023 and a peak of 55 in 2022. But the report noted that despite the decrease, many of the gag order bills that were proposed this year shared a worrisome pattern: They were couched in the language of less controversial issues.

“Rather than openly advertising the ways their bills would restrict speech, as they did in previous years, they instead claimed such bills would advance laudable and broadly popular goals for higher education,” the report read.

Cloaked in Obfuscation

The legislation includes Indiana’s polarizing SB 202, which requires professors to express “intellectual diversity” in their teaching by introducing students to “scholarly works from a variety of political or ideological frameworks that may exist within the curricula”—and predicates tenure on their doing so. Critics say that the bill, which also allows students to report alleged violators, will stifle faculty speech and lead to lower standards of teaching, as professors will have less freedom to decide what readings and perspectives they wish to present.

The report also cites states that have adopted the International Holocaust Remembrance Alliance’s working definition of antisemitism, which considers calls for the destruction of Israel to be antisemitic. Two proposed New Jersey laws, which ultimately did not pass, would have disallowed higher education institutions to “authorize, facilitate, provide funding for, or otherwise support any event or organization promoting antisemitism or hate speech on campus”—which, the report says, sounds like a valiant effort to fight discrimination on campus but in fact censors speech critical of the Israeli government.

Vivian noted that this form of obfuscation relates to another tactic Republican legislators have used in DEI bans for several years now: “Cloaking everything in the language of budget or saving money.”

For instance, in Iowa’s 2023 bill banning DEI, “all the rhetoric around the State Legislature … was a justification saying it was super expensive” to maintain DEI offices and programs, Vivian said. Legislators alleged that Iowa’s three public universities spent about $9.7 million on DEI annually, pointing toward high salaries of various campuses’ chief diversity officers.

The report also notes that not every instance of government censorship has been legislative; in several cases, universities have cowed to partisan pressure to shutter DEI offices and eliminate courses related to concepts like race or sexuality even in the absence of a proposed bill.

Schrecker said that she believes the current wave of censorship at American universities is distinct from any that has come before, due to its focus not only on individual professors’ political activity but on a broad—and often ill-defined—set of concepts and ideas that Republican legislatures have deemed inappropriate.

“It’s completely unprecedented in its scale,” she said. “What’s new is the targeting of what’s going on in the classroom and the banning of books. Altogether, it’s a war on ideas, not just on people.”

But on the positive side, the report notes, legal pushback against such bills is on the rise; there are currently 16 active lawsuits targeting educational gag orders and other related legislation impacting both K-12 and postsecondary education. Six were filed in 2024.

The lawsuits have been based largely on the argument that the laws restrict First Amendment freedoms, but several have also alleged that they violate the 14th Amendment by constituting “targeted discrimination on the basis of a protected class” and being so vague that they’re enforceable entirely at legislators’ discretion.

But the challenges have been against the more traditional educational gag orders, rather than laws that indirectly create educational censorship.

“These autonomy restrictions, which began to be passed last year—the first ones took effect in January of this year—we still have not seen a lawsuit against one of those [laws] move to any sort of judgment. There are lawsuits pending in Florida and in some other states, but there’s not been any resolution,” said Young. “That’s something we’ll want to look out for in 2025.”