Bans on “Divisive Concepts” Risk Stifling Speech

The growing (though not unanimous) acknowledgement that academia has lost public trust may be increasingly uncontroversial. But identifying remedies to repair that broken trust is proving to be much more contested. 

With the ban on the promotion of “divisive concepts” in North Carolina’s public institutions, the Tar Heel State joins the likes of the Lone Star State and the Sunshine State in aggressive reform efforts that risk squelching intellectual inquiry. Ultimately, bans like these do nothing to strengthen free expression, and in fact do the exact opposite: they stifle speech and create climates of fear.

As an NCSU PhD student focused on higher education policy, I am on board with many criticisms of the academy. Poor scholarship has been propped up by activist sentiment, with some disciplines more guilty than others (the humanities and my beloved social sciences among them). Critical theories have become gospel rather than perspectives to be considered from all angles. And there’s any number of quiet avenues in which certain orthodoxies have spread throughout the academy, such as “citation justice” and now-defunct DEI requirements in accreditation, both of which I have criticized publicly.

But content bans are nothing but trouble, even when ostensibly targeting the “promotion” of ideas rather than mere engagement with ideas. These bans fail to articulate positive visions of healthy intellectual exchange, jeopardize the climate of free expression, and discourage faculty from facilitating class discussions on worthwhile topics. Moreover, bans on “divisive concepts” do a disservice to students, who need more intellectual exchange, not less. 

Engaging with divisive concepts should be part and parcel of the higher education experience. Supporters of the divisive concepts ban may correctly point out that it bans the “promotion” of certain concepts, rather than ban discussion outright. But the line between “promoting” versus “engaging” with an idea is a matter of perspective, and absolutely ripe for misunderstandings and implementation missteps.

What does it really mean to “promote” a divisive concept? Suppose a faculty member enthusiastically facilitates a discussion on Judith Butler’s ideas about gender as performance—does lively engagement risk coming off as “promotion”? What if a biology professor’s remark about intersex conditions is interpreted as “promoting” the idea that biological sex is not binary? Is insufficient throat clearing on controversial issues tantamount to endorsement?

The recent enumeration of divisive concepts clarifies little. Take one example: the bill bans the promotion of the idea that “particular character traits, values, moral or ethical codes, privileges, or beliefs should be ascribed to a race or sex or to an individual because of the individual’s race or sex.” Sure, let’s not unfairly ascribe things to individuals just because of their race or sex. But can we in broad strokes recognize group-level differences in society, such as differences in risk-taking behavior between men and women, and racial differences in religiosity?

Most people would say yes, of course faculty can allow their students to explore those topics in class when relevant. They just cannot require their students to hold certain views. But most people are not UNC System faculty, who are navigating an unclear set of restrictions in an era of great upheaval for higher education (and likely looking at their peers in  Texas and Florida, and wondering if North Carolina is headed in the same direction). Given the circumstances, risk-averse over-compliance is almost a guarantee—and is likely a feature, not a bug. 

Some of these divisive concepts are so deeply embedded within certain disciplines that avoiding them entirely is impossible. Critical theories about race, sex, and power dynamics are load-bearing pillars of entire fields. This points toward much larger epistemic quandaries within academia—ones which need to be addressed, but cannot be remedied through top-down legislation that puts faculty on edge and dampens classroom speech.

Personally, I am both compelled and fatigued by many so-called “divisive” concepts. They add depth to how I understand the world, but their seemingly wholesale embrace by vocal segments of the academy has come at an intellectual cost for all of us. I don’t want divisive concepts eliminated from teaching and research, but I do want them subject to a fair intellectual fight—no rigged scoring from social justice referees, and no sucker punches from policymakers. Contested issues are best grappled with in a climate of trust and free expression, rather than a climate of fear and suspicion.

Recent incidents in the UNC System should give us all pause over how the divisive concepts ban will be implemented. For example, last year NC State Libraries cancelled a book reading from a Palestinian-American children’s book author, citing the Equality Policy which requires departments to remain neutral (despite the obvious fact that hosting a speaker is categorically different from endorsing their perspective). 

More recently, UNC-Chapel Hill administrators initially claimed to investigate two student media platforms for protected, satirical speech before walking back their claim. These incidents may have been learning experiences for administrators. But it’s likely that the ban on divisive concepts will face similar implementation challenges, and be used in ways that weaken rather than broaden intellectual exchange on campus.

Strong academic freedom protections are crucial to defending teaching and research from the kinds of overreach made possible by divisive concepts legislation. The UNC System’s new academic freedom policy, approved by the Board of Governors earlier this year (and criticized by NC members of the AAUP), may be put to the test in the coming months. 

To strengthen the new academic freedom policy in light of divisive concept legislation, the Board of Governors would do well to emphasize that engagement with a topic is not promotion, and that faculty and students are free to engage with any and all of the concepts on the naughty list. Additionally, UNC System institutions should also commit themselves to faculty-driven review processes for accusations of violating the divisive concepts ban, involving a high burden of proof.

The fast-approaching fall semester will see the rubber meeting the road for the divisive concepts ban. Many optimists out there may be expecting that it works out in favor of free expression— but if I were a gambling gal, you know where I’d be placing my bet.

Erin B. Shaw is a PhD student in NC State University’s Department of Educational Leadership, Policy, and Human Development, and a Research Associate at Heterodox Academy.