Rarely does a piece of education legislation deserve a grade of A+. But the End Woke Higher Education Act, which has passed the U.S. House of Representatives, has earned it.
The policies in the bill—which passed 213-201 on Sept. 19—are right on point and are articulated well. Freedom of speech, freedom of assembly, freedom of religion, and accreditation reform: What’s not to applaud?
Following the anti-Israel, antisemitic encampments and civil rights violations at multiple U.S. universities, it’s especially welcome to see the House clarify where free speech ends and actionable conduct begins.
Being more restrictive risks violating the First Amendment or a college’s own promises of free expression. But being any less restrictive risks violating civil rights.
Colleges have failed on both sides of this equation. The End Woke Higher Education Act, following Supreme Court precedents, shows them what they must and must not do.
In particular, the bill “recognizes that free expression, open inquiry, and the honest exchange of ideas are fundamental to higher education.” In that light, the bill encourages colleges to adopt the Chicago principles of free expression, which the University of Chicago uses as a touchstone and which also follows Supreme Court precedent.
Furthermore, colleges must disclose their speech and association policies to students. At student orientation, public colleges must explain students’ constitutional rights and their civil rights. And to prevent public colleges from reclassifying their public spaces to exclude the public, the bill reminds colleges that their public spaces are public forums for free speech.
The bill also condemns and discourages the use of a DEI (“diversity, equity, and inclusion”) statement—or any political litmus test—in hiring and admissions. That’s because a nonsectarian university should be neutral and merit-oriented, not activist, when bringing scholars and students into their academic community.
Similarly, the bill prevents accreditors—the bodies that vouch for colleges so that they can access federal student aid programs—from having DEI requirements. As colleagues and I have argued, accreditors too often abuse their gatekeeping power. This bill ensures that, at least for student aid purposes, accreditors do not stray beyond the letter of the law.
But wait, there’s more.
The bill protects student organizations in five ways. For one, sometimes a disfavored organization cannot find a faculty adviser as required due to social pressure on faculty members to avoid even advising the group. In such cases, a college must recognize the organization anyway.
Second, sometimes a college has given the student government authority over recognizing student organizations, but the student government abuses its power and rejects a group for ideological reasons. At a public college, that’s unconstitutional. This bill makes it clear that a group may appeal to the administration.
Third, it is common for a college to give the student government authority over expending funds from a mandatory student activities fee. These funds frequently go to ideologically and culturally favored organizations without the use of neutral funding standards.
This bill follows numerous court precedents to require the use of clear and neutral standards, and it requires an appeals process.
Fourth, sometimes a student organization is assessed an unreasonably high—and therefore unconstitutional—“security fee” to host a disfavored speaker, on the ground that protesters may disrupt the event.
Again, the bill follows Supreme Court precedent in preventing a public college from charging extra because of what’s called a “heckler’s veto.” A basic function of government is to keep its people safe, and extra security costs must be borne by the college.
Finally, some colleges have shown so much animus against single-sex social organizations that they ban students from joining them—even if such groups are unrecognized and off-campus.
No college, under the bill, may punish students for being part of a fraternity or sorority.
Overall, this bill mainly puts into law what the Supreme Court and lower courts have been saying for decades about how the First Amendment applies on college campuses.
If colleges had protected these rights in the first place, such a law would not be needed. But free speech violations are so pervasive across so much of American higher education that it is high time to implement policies such as the ones just passed by the House.
