Marisa Wojcik:

Welcome to “Noon Wednesday,” I’m Marisa Wojcik, multimedia journalist with “Here & Now” on PBS Wisconsin, and today is January 12. So, over the last year, debate over whether and how to discuss race in classrooms has taken over school board meetings and is threatening to upend college curricula. Now Republican bills before the Wisconsin state Legislature are seeking to put limits on how race discussions happen in classrooms into law. So, joining me to bet wither better understand what this could mean are two professors from the university law school, Steph Tai on the faculty with UW La Crosse, and Anuj Desai focuses on the first amendment in intellectual freedom, and thank you, both, for the conversation today.

Steph Tai:

Thank you for having us.

Anuj Desai:

Thanks. Yeah, thanks very much for having us. We’re thrilled to be here.

Marisa Wojcik:

So, to start off, there are two different pieces of legislation. One is for K-12 public and charter schools; the other targeted at UW system and technical colleges. They both say that instruction or training is prohibited to discuss, quote, that one sex or race is inherently superior to another sex or race, and that by virtual of the individuals, race or sex bears responsibility for the acts committed in the past by other individuals of the same race or sex. So that’s kind of a meaty statement. Anuj, can you explain to us what that is saying and why, in your mind, this is a freedom of speech issue?

Anuj Desai:

Yeah. Well, let me just start by thanking you for raising these issues before the public, and I just wanted to, you know, thank the audience for showing interest in these issues. So, the first thing, I guess I would say, is, so the bills are framed in a way that prohibits allowing teachers to teach race or sex stereotyping. So that’s the big picture category that is being prohibited, and then it says, including certain enumerated concepts, and then, you know, the ones you just listed off there, are two of the examples in the sort of list of sort of prohibited concepts. So why is this a free speech issue? It is a free speech issue in part because when we think largely about free speech in our society, we have institutions that are designed to further broaden ideas about free speech, and two of the big ones are k-12 schools and the universities, and so anything, really, that implicates the content of discussion in classrooms is going to implicate our conception of free speech.

Marisa Wojcik:

And we’ll get to the distinction between k-12 schools and universities in a minute, but, first, Steph, specifically in the setting of higher education, you are a part of a group called UW Profs that represents faculty in front of legislative bodies and the board of regions, so why does your group take issue with this legislation banning the discussion of race and sex on college campuses in this way?

Steph Tai:

Well, we represent the UW faculty members, and one of the things that we represent is the academic freedom of various professors throughout the university system. There are certain threats to academic freedom posed by the bills in that the bills are structured, seems fine in general, but they could have a chilling effect on discussions, right? So, the concern is that one might be talking about the history of the United States, and that might lead to students feeling bad, right, about their particular kind of histories. Now, that would not necessarily be the intent of the professor, but the mere fact a student might feel bad might mean they could maybe raise a lawsuit against the university, and thus, overall, creates a chilling effect on what faculty members might feel free to say. For example, I might talk in my pre-law class about the history of discrimination by the USDA, and this was acknowledged by the USDA in a lawsuit which it settled against black farmers. They had had a whole history of actual intentional discrimination that the USDA acknowledged. This might lead students to feel bad, for example, about this particular history, and would this fall over the line of this bill? It’s hard to know, and it might lead to sort of frivolous potential lawsuits, but still lawsuits that create a chilling effect. Moreover, it has — it has an effect on the recruitment of both faculty members and graduate students who might — especially those who have to teach in classrooms. They might be concerned about being able to engage in the kinds of teaching that they want to be able to do because, again, of the chilling effect, and that means that we’re going to have to recruit as a university system from a smaller pool of faculty, and thus lead us to be less competitive as a university.

Marisa Wojcik:

And that’s interesting that you bring up even just teaching about the history, so it could have the chilling effect and stifle instructors’ ability to teach about the United States’ history, which includes discrimination. Anuj, is there a difference of prohibiting this in k-12 schools versus in a higher education university setting?

Anuj Desai:

Yes. So, the short answer is absolutely, yes. So, I do — before I answer it directly, I just do want to, you know, pick up on one theme that Professor Tai raised, and that is this question of what we, you know, first amendment lawyers refer to as the chilling effect. There are certain things that the law might prohibit that we actually might all agree it ought to prohibit people from saying, whether in K-12 or in universities, and, you know, as Professor Tai pointed out, the big question here, I think, is, you know, well, you know, again, lawyers call an “interpretive question.” What exactly is meant, and, you know, as she was indicating, the question about whether or not certain things, certain discussions might fall into the statute. I think if we, you know, step back for a second, I think, you know, overall, if you look at the way the legislation has come through, you could, you know, if you were inclined, accuse those who have introduced it of trying to do just that. That is suppress discussion about race in general, but if we, you know, I think if we take those Legislators at their word, we can imagine a sort of narrowing interpretation that sort of goes back to sort of where you started us with the bill, and that it’s prohibiting things like, you know, teaching that one race is inherently superior to another race, right? And those are things that, you know, if thought of in, you know, sort of, you know, in their literal way seem unobjectionable, right? So, I think one thing to be thinking about in this whole discussion is how much of a chill are laws like this actually going to have? Let me go now to your, you know, directly to your question without about K-12 versus colleges. So, the short answer is in the K-12 context, the government has almost sort of complete discretion to set the terms of education under the first amendment. There are some limits, and so one that might be relevant here is, you know, the courts have indicated that if education curriculum is done in a nakedly partisan way, that that might — that might violate the first amendment, but, you know, the courts have never found this, so that sort of indicated that would be the case, but have never actually held something to be nakedly partisan whereas, you know, as Professor Tai was mentioning, in the college and university perspective, you know, areas, teachers have just a lot more leeway, I guess is what I would say, to express their own views about things, and that is that concept of academic freedom, which intertwines with freedom of speech and is part and parcel to it in constitutional law.

Marisa Wojcik:

And, Steph, there is a long list of words and phrases listed in addendum to this legislation that was authored by Representative Wickers, and he adds that prohibiting certain words like “social justice,” “equity,” “antiracism,” restorative practices, “woke,” “intersectionality” just to name a few, but it is a very, very long list. If those words are used in the context of this Legislation, those would also be prohibited. What’s your reaction to that?

Steph Tai:

Well, this actually goes to something that Professor Desai mentioned. This is all going to be up to the interpretation of courts, and the effect of this is going to be that even though it’s not in the Legislation, itself, it is an interpretive tool. So, one of the rules of statutory interpretation is that some of the legislative debate and authors’ intent goes into the interpretation of that, and so while not actually in the statute, itself, these words would be used by judges to figure out the scope of the bill, right? Whether it is interpreted broadly to include many different types of things, thus covering a larger set of things, versus interpreted narrowly. I do want to go back to one thing that Professor Desai mentioned that while courts have not held that — that rejected bill that limited the scope of curriculum due to entirely partisan reasons, there was a case in Arizona where Gonzalez v. Douglas, did overturn a ban on ethic studies in Arizona reaching K-12 to colleges because it was based on racially discriminated — racially amanous, and they learned that in the Legislative history, and so there’s small exceptions, and a lot of this is going to depend on what the legislators say and do and all of this kind of interpretational stuff.

Marisa Wojcik:

And Professor Desai, there are already some lawsuits about the legislation pending. Can you describe what you know about those lawsuits?

Anuj Desai:

Sure, yeah. So, let me back up. So, this is, right know, in Wisconsin at least, these are just bills. They are not laws. There’s no lawsuits about them because they are not the law, and maybe we’ll talk about this later. It doesn’t seem highly likely that they will become law because I think the governor also is, you know, a former superintendent of public instruction here has effectively indicated that he will veto them if they come before him. But there are a lot of similar laws that other states have passed at this point, and so some of those laws have been challenged. One in Oklahoma I know of, one in New Hampshire I know of, and there may be others. I’m afraid Im not up on all the latest, but there are probably about, I would say, about a dozen other states that have passed laws that are similar to this. I will say one thing that — Im not 100% sure the lawsuits have done, but may be contributing to — I mean, one thing that’s happened since these bills were introduced, and you referred earlier to that list of words that was attached, you know, initially back in July or August of 2021, but since then, there have been amendments, and the amendments have, you know, passed in the committee, and those amendments really have narrowed the Wisconsin bills kind of significantly compared with a bunch of the other states that have passed legislation. So, you know, you can think, you know, for those of us who care about the kind of legislative and broader legal process, you can think of this all as part of kind of national discussions that, you know, that we, as a country, are having about, you know, the role of K-12 schools and colleges in kind of race related education.

Marisa Wojcik:

And, Professor Tai, along those lines, I mean, what do you think these bills are actually saying? They’re largely, as Professor Desai just said, part of this big political movement, and there’s some conservatives saying this is — that there’s now reverse discrimination happening, and it is getting twisted. You know, they are trying to ban critical race theory specifically, something that’s not even taught in K-12 schools. What is your reaction to kind of all of this discourse swirling around that’s now creating real proposed legislation?

Steph Tai:

I think part of it is just — I don’t want to use a harsh a word as this, but fear mongering, right? It is using some sort of specter to drive out votes in particular direction. Again, I use this word “fear mongering,” even though right now, there should be a better word for this, because critical race theory is not taught in K-12. It is not even taught in colleges. It is kind of being taught as a very thin slice of law school, but that’s it. It’s not an actual thing that people are teaching, although, in the proposed bill they were talking about this as a sort of generalized term, it is actually a very specific term that has a concrete legal history, and so I think that’s where some of this is coming from. Another part of this is also potential for lawsuits. So, there are organizations that make — get sizable attorneys’ fees from suits like this because this bill, even though it’s not passed yet, this bill would grant attorneys’ fees for anyone representing complaints about this teaching. The complainants are not limited to the class. They are any student or staff member of a university. This provides a broad pool of probably claimants who might get attorney representation by attorneys who want to seek attorneys’ fees in some way. What this means, though, is that this is actually a hidden tax on Wisconsin voters. The taxes are not paid out of the university’s system or the K-12 system. They are paid by us. Our income taxes. This is a hidden part of the agenda, I think, that is not really discussed very much.

Marisa Wojcik:

And this last question is for both of you, and, Professor Desai, Ill ask you first. Even if the assembly and senate pass this legislation, which is likely, it’ll be sent to the governor’s desk, and as you already mentioned, he’s likely to veto it all together, so what does this type of legislation implicate, even if it won’t be assigned into law?

Anuj Desai:

Yeah. It’s a great question. You know, I think it implicates, you know, broadly political discourse right? As Professor Tai was mentioning, these are issues that people really care about, and all across the political spectrum, right? People really, really care about and as Professor Tai pointed out, people vote on the basis of these thing, and so just because a bill doesn’t pass, doesn’t mean it doesn’t have a political impact. If you don’t mine, I just want to — I will sort of respectfully, you know, kind of disagree slightly with what Professor Tai had said earlier. I don’t think the proponents of these bills — and, you know, by the way, none of our bills, at least, use the term “critical race theory” in the legislation, itself, right? I don’t think they — it matters too much that the thing that is officially critical race theory is taught in the schools. I mean, I think what they are concerned about is, you know, that list of things, you know, that somebody’s being taught that, you know, because of their race, they are responsible for things in the past that people of their race did or things of that ilk, so, you know, I guess I have a slight, you know, disagreement there, and, you know, just on the question of the attorneys’ fees, it is important to realize, you only get attorneys’ fees if you are successful, right? You don’t get attorneys’ fees if you lose the case. Now, it is true that there is always the worry that people will be incentivized to bring cases, but that’s a system we set up for lots of things. I mean, environmental claims we have attorneys’ fees for. There’s a lot of circumstances where the law says we want to encourage people to help enforce the law because otherwise it’s not likely to be enforced as well. So, but Ill leave you with that.

Steph Tai:

I do want —

Marisa Wojcik:

Go ahead. I mean, you did — you did say that, you know, in regards to what Professor Desai was saying to the fact that even just teaching history might show that, you know, I’m responsible for the actions of my ancestors in American history, and you did mention earlier that that could include, you know, a student feeling bad, and then that could fall under the purview of this Legislation, but do you have a reaction to that, and what do you say the implications of even just introducing this legislation is?

Steph Tai:

Well, I think the implication is to — if it passes — but even the introduction of it has already created some cause of concern among faculty members, especially in terms of recruitment of faculty members because they are going to be here for a very long time, and even if the bill doesnt pass now, who’s to say after a gubernatorial election, the bill wouldn’t be passed in some future, so people are making very long-term decisions that they might be more hesitant to make if they had an option to go to a different university in a different state so there’s that kind of concern. I do want to go back and say that I, perhaps, I was not suggesting that critical race theory is not taught in K-12 and that’s why it doesn’t matter. My suggestion is mostly that critical race theory is used as a shorthand for a very large number of things that are not actually specifically defined. Therefore, they are more able to use this as this sort of generalized specter that can sort of shape shift at whatever moments. As for attorneys’ fees, the only reason I mentioned that is because there is a particular organization in Wisconsin who with is announced their mission to challenge critical race theory, and this is specifically, you know, they wouldn’t have been able to get attorneys’ fees before that, and they now would be able to if this bill were to pass, and so that organization is, my understanding, they contributed to the legislation. So, there’s a certain particular self-interest involved. Again, there are attorneys’ fees for so many other things, but this seems driven by a particular organization.

Marisa Wojcik:

Very complex issue that Im sure we’ll be covering, if there’s more action on this legislation, but in the meantime, Professor Steph Tai and Professor Anuj Desai, thank you, both, very, very much for the conversation today.

Anuj Desai:

Thank you. Thank you, Professor Tai, too.

Steph Tai:

Yeah, thank you, Professor Desai.

Marisa Wojcik:

For more from “Here & Now” and PBS Wisconsin, visit pbswisconsin.org, and thank you so much for joining us on “Noon Wednesday.”