Opinion: Despite some good ideas, Senate Bill 83 should be defeated

Ohio State Senator Jerry Cirino recently introduced Senate Bill 83, "The Higher Education Enhancement Act." The bill mirrors similar legislation enacted in Florida at the urging of Gov. Ron DeSantis, which itself traced to former President Donald Trump’s 2020 Executive Order on "Combating Race and Sex Stereotyping." Most members of Ohio’s higher education community oppose seemingly every provision in the bill because it is rooted in the conservative politics of the culture wars. However, as a tenured university law professor in Ohio, I think the bill does contain some good ideas.

Of particular import is the bill's prohibition against advantaging or disadvantaging "on the basis of membership in groups defined by characteristics such as race, ethnicity, religion, sex, sexual orientation, gender identity, or gender expression in admissions, hiring, promotion, tenuring, workplace conditions, or any other program, policy, or activity."

Two related considerations confirm the appropriateness of the quoted provision of S.B. 83. First, the provision is merely a restatement of existing employment discrimination law and, with respect to admissions decisions, what the law almost certainly will become once the U.S. Supreme Court decides cases involving the University of North Carolina and Harvard University before the summer recess. Like it or not − and the higher education community, dominated as it is by the left, does not like it − it is illegal to advantage or disadvantage someone because of his or her race, gender, ethnicity or similar characteristics when making decisions about people at work.

Unfortunately, because racial preferences are the sacred cow of higher education, well-settled anti-discrimination law is frequently flouted on college and university campuses, including in Ohio. For example, jobs are frequently set aside for minorities and women, and conservative and libertarian white males need not apply, or so it seems. I have heard of faculty searches in which a member of the faculty or administration has stated that his or her school has an open position, but that the position must (not "could") be filled by a minority or a woman. In fact, the faculty hiring process has gotten so out of hand that one law school did not immediately disqualify a minority candidate who recently had failed the bar examination. (You read that correctly: a law professor who failed the bar exam.)

The above-described commendable portion of S.B. 83 notwithstanding, the bill contains many problematic provisions that should lead to its defeat. Most notable are the "divisive concepts" policies at the heart of the bill that limit classroom discussion, scholarly inquiry, and public debate on controversial topics such as critical race theory, an intellectual and social movement that maintains that American law and society reflects, promotes, and perpetuates white supremacist politics.

Obviously, "divisive concepts," like everything discussed in a classroom setting, must be taught in a fashion that students are never compelled to accept the beliefs of their instructors: indoctrination is inconsistent with education. But instructors must enjoy the academic freedom to express their beliefs and their rationales for holding them. Political intervention to abrogate the free exchange of ideas on college and university campuses will damage our institutions of higher learning and impede their ability to contribute to the advancement of knowledge.

As the nonpartisan Academic Freedom Alliance concisely put it, "Bans on divisive concepts, or speech codes by any other name, whether they come from the right or the left, are incompatible with the preservation of great universities."

Scott Douglas Gerber is a law professor at Ohio Northern University. His 10th book, "Law and Religion in Colonial America: The Dissenting Colonies," will be published this summer by Cambridge University Press.

This article originally appeared on Cincinnati Enquirer: Opinion: Despite some good ideas, Senate Bill 83 should be defeated