Editor’s note: Interested in this legislation? Be sure to also check out the recording of our pop-up Q&A on it.

Last Thursday, with four Democrats voting in favor, the House of Representatives passed the Republican-sponsored higher education bill by a vote of 213-201, sending it to the United States Senate, where it is unlikely to move before the session ends at the close of the year.

Despite its provocative name, the End Woke Higher Education Act has little in common with bills that have been introduced across the country that ban ideas from college classrooms or seek to kill all campus diversity initiatives. Instead, it primarily focuses on enshrining existing Supreme Court case law that institutions of higher education commonly bungle, by requiring them to use the frameworks already used by the Court.

A close look at the legislation shows there’s plenty in it to support if—as Heterodox Academy (HxA) does—you believe in advancing academic freedom, viewpoint diversity, and constructive disagreement in higher education.

For example, HxA is pleased to see that, in the bill, Congress is urging institutions to adopt the Chicago Principles or similar commitments to campus free speech and open inquiry. And we are also pleased that the bill condemns the use of political litmus tests in admissions, hiring, promotion, and firing.

A binding section forbidding public institutions from using political litmus tests is one we agree with in principle, but we are continuing to evaluate the specific language. Getting that right will require great care to ensure that the act will provide clear expectations and rights, and that schools know clearly what they can and cannot consider when evaluating candidates.

Below, in service to our constituents and as HxA’s Director of Policy, I provide a deeper dive into this bill, offering HxA’s perspective on provisions in it where we have a position, sketching out descriptive analyses of other key features of the bill on which we have not yet staked a position or that fall outside the scope of our mission. By way of disclosure, during my years leading the government relations efforts of the Foundation for Individual Rights and Expression (FIRE), I consulted with members and staff from both parties on the House Education and Workforce Committee on this legislation and its precursors. Consistent with our nonpartisan mission, with our new Policy Division in place, HxA plans to be a helpful resource for all members of Congress as they evaluate the relative strengths and weaknesses of legislative proposals.

While it’s unlikely that the Senate will move this bill, we at HxA appreciate the great care by which its drafters tackled several pressing higher education issues. As we continue to evaluate the legislation with a critical eye, we will be laser-focused on evaluating whether each provision helps or hinders our goal of promoting open inquiry, viewpoint diversity, and constructive disagreement on campuses across the country.

Here then is our deep dive.

The act in question really incorporates two other acts:

The End Woke Higher Education Act (H.R. 3724) is really a mash-up of several discrete higher education bills. If passed, the bill would amend the Higher Education Act to include two new Acts: The Accreditation for College Excellence Act of 2024 and the Respecting the First Amendment on Campus Act.

Let’s look at these one at a time.

The Accreditation for College Excellence Act of 2024

Existing federal law sets nine criteria for higher ed accrediting agencies to earn recognition from the Department of Education (ED). The Accreditation for College Excellence Act would add a tenth criterion. Under it, no agency or association can be recognized unless it:

confirms that the standards for accreditation of the agency or association do not—

[...]

(i) require, encourage, or coerce any institution to—

(I) support, oppose, or commit to supporting or opposing—

(aa) a specific partisan, political, or ideological viewpoint or belief or set of such viewpoints or beliefs; or

(bb) a a [sic] specific viewpoint or belief or set of viewpoints or beliefs on social, cultural, or political issues; or

(II) support or commit to supporting the disparate treatment of any individual or group of individuals on the basis of any protected class under Federal civil rights law, except as required by Federal law or a court order; or

(ii) assess an institution’s or program of study’s commitment to any ideology, belief, or viewpoint;

The aim of this section is consistent with HxA’s goal of promoting open inquiry. In general, accreditation agencies should not be pressuring institutions—or worse, requiring them—to support or oppose partisan, political, or ideological views. It’s easy to see the threat to open inquiry accreditors would pose if they exercised their power in that manner.

However, what constitutes a partisan, political, or ideological viewpoint? Is requiring a general support for “diversity” sufficiently ideological or partisan? Or to run afoul of this provision, would an accrediting agency have to push a particular contested vision of diversity? Congress may benefit from adding guardrails in the form of definitions here.

The accreditation portion of the Act also prohibits ED from establishing “criteria for accrediting agencies or associations that are not required by this section.” This too makes sense. Regardless of which part of the political spectrum you are on, over a long enough timeline, the Department of Education will likely be led by someone whose politics you loathe. Preventing ED from unilaterally adding new criteria is a helpful check on its power.

Respecting the First Amendment on Campus Act

This portion of the bill includes both non-binding recommendations and binding legislation. While the non-binding sections don’t carry the same weight as the binding, they’re still worth looking at for what we gain in terms of statements of principles.

Non-binding sections of the bill

The Respecting the First Amendment on Campus Act is a comprehensive bill that does several important things that HxA supports. It starts with a non-binding “sense of Congress” that “recognizes that free expression, open inquiry, and the honest exchange of ideas are fundamental to higher education.”

It then calls on (but does not require) nonsectarian institutions of higher education to “adopt the Chicago Principles or substantially similar principles with respect to institutional mission that emphasizes a commitment to freedom of speech and expression on university campuses and to develop and consistently implement policies accordingly.”

Promoting open inquiry is at the heart of HxA’s mission and we have long regarded the Chicago Principles as one of the greatest articulations of the importance of free speech on campus to the overall health of higher education.

Finally, the non-binding portion of the bill tackles political litmus tests. There, Congress:

(A) condemns public institutions of higher education for conditioning admission to any student applicant, or the hiring, reappointment, or promotion of any faculty member, on the applicant or faculty member pledging allegiance to or making a statement of personal support for or opposition to any political ideology or movement, including a pledge or statement regarding diversity, equity, and inclusion, or related topics; and

(B) discourages any institution from requesting or requiring any such pledge or statement from an applicant or faculty member, as such actions are antithetical to the freedom of speech protected by the First Amendment to the Constitution.

HxA agrees that political litmus tests in the student admissions process or in the hiring, firing, or promotion of faculty grossly undermine academic freedom, so we are glad to see Congress urge public universities to avoid that practice.

Binding sections of the bill

Annual Certifications

A key feature of the legislation is that it requires all institutions of higher education to submit an annual certification to the Department of Education as a condition of eligibility for any program under Title IV. A great many programs are funded through Title IV, including Pell Grants, Stafford loans, and other student aid programs. Eligibility for these programs is crucial for the survival of nearly all institutions of higher education.

The required annual certification is not particularly onerous. Institutions must simply certify to the Department of Education that they have disclosed any policies they have on expressive rights, freedom of association, or freedom of religion (if applicable) to current and prospective students and faculty. This requirement does not require institutions to have any such policies, but they must disclose those that exist. Fair enough.

One impactful feature of the law is that it also requires schools to acknowledge in their certifications that the students and faculty are the intended beneficiaries of the identified policies. This would be a huge legal win for students and faculty at private institutions of higher education. The First Amendment does not apply to students and faculty at private institutions, but most courts have concluded that those institutions are bound by contract law to abide by their promises. This provision in the bill would make clear that plaintiffs in those cases no longer have to prove that they were the intended beneficiaries of policies they rely on in potential lawsuits. Lawyers representing institutions might hate this, but at the end of the day it makes any potential litigation simpler by resolving intermediate issues that commonly result in rounds of briefing. It’s also completely reasonable to expect private institutions to make this admission.

Speech Protections

The provisions protecting freedom of speech in the legislation are binding only on public institutions of higher education and do not apply to the military academies.

The bill requires those institutions to provide new and transfer students attending orientations with information about the importance of free speech on campus, explanations of their rights under the First Amendment and under Title VI, programming on free expression rights, as well as “assurances that students, and individuals invited by students to speak at the institution, will not be treated in a manner that violates the freedom of expression of such students or individuals.”

HxA fully backs the provisions requiring free speech programming.

The bill then restates what numerous federal courts have been telling public universities for years: expression in outdoor areas of their campuses that are generally accessible to the public can be regulated with time, place, and manner restrictions, but only when those restrictions are: 1) “narrowly tailored in furtherance of a significant governmental interest;” 2) “based on published, content-neutral, and viewpoint-neutral criteria;” 3) “[leave] open ample alternative channels for communication;” and 4) “[provide] for spontaneous assembly and distribution of literature.”

This is the precise test (set forth by the Supreme Court) that courts have used to strike down countless misleadingly labeled “free speech zone” policies that quarantine expressive activity to far off places on campuses. It is also the standard set forth in nearly every one of the 20+ enacted state laws on campus free speech. (Disclosure: I consulted with legislators and staff on nearly all of these laws in my capacity as FIRE’s Legislative and Policy Director.) It allows for institutions to forbid overnight encampments and to prohibit amplified sound outside of libraries, classrooms, or university hospitals, provided those rules are applied evenly rather than selectively against those with disfavored views. In other words, an institution could not prohibit encampments protesting about conditions in the Middle East, while allowing football-related encampments. Still, any rules must be a close fit (narrowly tailored) to meet a significant institutional interest. Enacting this provision will refocus institutions in states that have not yet enacted state laws on adopting carefully crafted rules and hopefully steer them away from unconstitutional policies.

The legislation also requires public institutions to “establish and make publicly available clear, objective, content- and viewpoint-neutral, and exhaustive standards to be used by the institution related to the safety and protection of speakers and guests who are invited to the institution by a student or student organization.” We’ve seen bills use much heavier hands that impose mandatory suspensions or expulsions for students involved in speaker disruptions. Making it clear that schools must adopt plans to protect students without forcing them to adopt any specific approach avoids the pitfalls of the other approach.

Speaking of protecting speakers and invited guests, the legislation tackles a common mistake that institutions have made. Existing Supreme Court case law allows government actors to charge security fees for those who want to use public spaces for events, but the case law requires those fees to be calculated using content-and viewpoint neutral criteria. The Supreme Court has been clear that considering potential protesters when assessing fees to permit applicants is unconstitutional because doing so empowers potential censors to raise the costs on their adversaries by threatening to raise a stink.

Of course security costs might increase if there are protests, but those additional costs must be borne by the institutions, since they are government actors. Accordingly, the bill prohibits public institutions from considering the content or views likely to be expressed at campus events or the potential reactions to speakers when assessing security fees. For practical purposes, this still allows for institutions setting fees to consider factors like the likely size of the invited crowd, the nature of the location where the event is to take place, whether the event is taking place at night, or whether alcohol will be served.

Academic Freedom Protections

There are many ways that academic freedom can be threatened, including bans on ideas in the classroom and sanctions for a faculty member’s extramural speech. The bill does not tackle most of those threats.

Because the bill is named the End Woke Higher Education Act, it’s only natural for people to assume that it shares features with Florida’s currently enjoined Stop W.O.K.E. Act, which banned certain ideas about race relations from being taught in college classrooms. But the federal bill, thankfully, does not ban any ideas from college classrooms. In fact, the bill does not alter any existing rights of students or faculty in the classroom. Faculty still maintain full control of the learning objectives, subject matter, and methods of evaluation. Instead, it focuses on a particular practice that many claim has been used to screen dissenters from the classroom in the first place.

The practice it seeks to tackle is the use of “political tests” used to screen applicants from candidate pools or applicants for promotion. The bill states that public institutions “may not consider, require, or discriminate on the basis of a political test in the admission, appointment, hiring, employment, or promotion of any covered individual, or in the granting of tenure to any covered individual.”

The term “political test” is defined as:

a method of compelling or soliciting an applicant for enrollment or employment, student, or employee of an institution of higher education to identify commitment to or make a statement of personal belief in support of any ideology or movement that—

(i) supports or opposes a specific partisan or political set of beliefs;

(ii) supports or opposes a particular viewpoint on a social or political issue; or

(iii) promotes the disparate treatment of any individual or group of individuals on the basis of race, color, religion or national origin, including—

(I) any initiative or formulation of diversity, equity, and inclusion beyond upholding existing Federal law; or

(II) any theory or practice that holds that systems or institutions upholding existing Federal law are racist, oppressive, or otherwise unjust.

The third sub-prong looks a lot like an articulation of the ideas Florida’s Stop Woke Act bans professors from teaching in the classroom, but what makes this different is that the provision in this federal bill does not apply to the classroom. Instead, in the federal bill, Congress is forbidding those in charge of admissions, hiring, firing, or promotion decisions from compelling applicants to hold those views. While legislatively banning those views from college classrooms is inappropriate and legislatively banning those who hold those views from admission or faculty opportunities would also be a serious violation of academic freedom, this bill doesn’t do either.

In the case of students, a covered individual is anyone enrolled or who has applied for admission to the institution. For faculty, covered individuals are existing faculty at the institution and those who have applied for faculty positions at the institution.

The bill provides important caveats which are as important as the general rule. The Military academies can still require oaths to the U.S. Constitution. Public institutions can still require students and faculty to comply with state or federal anti-discrimination laws and take action against them if they don’t. Public institutions can still evaluate whether a student or faculty member is violating federal law by knowingly providing material support or resources to a foreign terrorist organization as those terms are defined under existing law. Advocates for civil liberties will need to be vigilant in ensuring that, if this is enacted, the definition of “knowingly providing material support or resources to an organization designated as a foreign terrorist organization” is applied in good faith and not used as a cudgel to harass student organizations for any protected political expression.

And of crucial importance, public institutions can still consider “the subject-matter competency including the research and creative works, of any candidate for a faculty position or faculty member considered for promotion when the subject matter is germane to their given field of scholarship.” This practical carve-out ensures that institutions can still consider a faculty or prospective faculty member’s work product even when it covers what is conventionally understood as ideological material.

Lastly, the political test provision does not apply to student organizations, which means it will not prevent College Democrats from continuing to be College Democrats, and College Republicans will still be free to be College Republicans.

So, when viewed in its totality, this section means that, in the admissions process and the hiring and firing processes, public institutions cannot screen people out for “wrong political-think” in the context of D.E.I., which is expressly mentioned here, or in the context of any other partisan or political movement. By not limiting this to certain controversial D.E.I. arguments, the bill avoids ironically creating a litmus test in its bill against litmus tests.

The bottom-line message: stop testing people for conformity on political/ideological grounds. Whether the terms would benefit from additional definitions is something HxA is still evaluating.

Student Organizations

Several pages of the legislation are dedicated to setting forth the rights of student organizations and the students who want to participate in those groups. Many of those sections involve issues that appear outside of the scope of HxA’s mission.

For example, the bill forbids public institutions from denying recognition to a student group because it does not have a faculty advisor. When a student group seeks recognition without a faculty advisor, the institution must either waive the requirement or appoint a member of its faculty or staff to fulfill the administrative function. Importantly, an appointed faculty advisor may only be required to perform “the purely administrative functions required of a faculty advisor.”

The bill requires that any denial of an application for recognition be provided in written form with the rationale for the denial explained. It also requires institutions to provide an appellate process, where the appellant may retain legal counsel, for those who wish to challenge decisions denying their organization’s recognition.

Next, the bill codifies Supreme Court case law that states that if public institutions collect and distribute mandatory student activity fees, they must allocate those funds using viewpoint neutral criteria. Institutions must publish the total amount of funds available, their full criteria for distribution, and their allocations to each student organization that receives funds. Student organizations denied any portion of their request may request a written explanation of the denial and are entitled to an appellate process similar to the one described above. While many of the student organization protections in the bill are likely out of the scope of HxA’s mission, this provision is likely in our wheelhouse because it will ensure that there is a diversity of viewpoints presented by student organizations and that those with disfavored views aren’t prevented from accessing programming funds.

Another provision in the bill prohibits public institutions from denying religious student organizations

any right, benefit, or privilege that is otherwise afforded to other student organizations at the institution (including full access to the facilities of the institution and official recognition of the organization by the institution) because of the religious beliefs, practices, speech, leadership standards, including standards regarding religious identity, belief, or practice, or standards of conduct of the religious student organization.

If this provision becomes law, public institutions will not be able to take action against a religious student organization for requiring its leadership to abide by its own code of conduct. Some view this as a green light for those organizations to discriminate, but others view it as essential if those organizations are to maintain their religious identity. Whether one agrees with this provision in the bill generally depends on whether one believes the law should favor diversity within every student organization, or diversity of student organizations.

The legislation next provides several protections for students participating in single-sex student organizations and for the organizations themselves. First and foremost, it forbids retaliating against a student for their decision to be a member of a single-sex organization.

Importantly, it expressly permits public institutions to take action against students in single-sex organizations for 1) academic or nonacademic misconduct; or 2) the organization’s purpose to incite imminent acts of lawlessness (a form of unprotected speech). Private institutions retain the right to take adverse action against students participating in single-sex organizations when “the organization’s purpose is incompatible with the religious mission of the institution, so long as that adverse action is not based on the membership practice of the organization of limiting membership only to individuals of one sex.”

One interesting feature of the bill is that it declares that nothing in it shall, “prevent a single-sex social organization from regulating its own membership.” So under the bill, unless there is another source of law stating otherwise, the student organizations themselves can define their gender requirements, including what counts as “single-sex.” If a fraternity wanted to restrict its membership to biologically born males, it could do so. Similarly, if a sorority decided to allow trans-women to join, this law would back that decision too. At the same time, nothing in the bill prevents the Supreme Court from deciding whether trans individuals are protected from discrimination under Title IX.

Another noteworthy item is that, despite the implications for academic freedom discussed above, the bill’s only direct mention of the term “academic freedom” comes in a paragraph preserving the rights of faculty members to express opinions about single-sex organizations. The paragraph reads:

Nothing in this subsection shall inhibit the ability of the faculty of an institution of higher education to express an opinion (either individually or collectively) about membership in a single-sex social organization, or otherwise inhibit the academic freedom of such faculty to research, write, or publish material about membership in such an organization[.]

This provision is a welcome one, but makes us wonder whether Congress should also enshrine statutory protections for academic freedom that apply in additional contexts as is the case in North Dakota. In North Dakota, state law requires public institutions to adopt a policy that:

Protects the academic freedom and free speech rights of faculty by guaranteeing, at a minimum, no faculty member will face adverse employment action for classroom speech, unless the speech is not reasonably germane to the subject matter of the class as broadly construed and comprises a substantial portion of classroom instruction.

Enforcement

Rights without remedies are hardly rights at all. With that in mind, the federal bill includes strong (perhaps even too strong) remedies.

First and foremost the bill provides a cause of action against public institutions that violate any of its substantive provisions, whereby a prevailing plaintiff can win injunctive relief, compensatory damages, reasonable court costs, and attorney’s fees. To establish jurisdiction, the bill states that, by accepting Title IV funds, a public institution agrees to waive any argument that sovereign immunity bars federal courts from deciding claims against them under this Act. Institutions are likely to object to this waiver but, frankly, there is already jurisdiction when a plaintiff brings a constitutional claim against these institutions. Without the bill, a student subject to a “free speech zone,” for example, could bring a federal Section 1983 lawsuit under the First Amendment, but they would have to brief the court on what test should be applied. Under this bill, a student could bring that claim and one under the statute, which resolves which test applies. In essence, this jurisdiction will actually make the litigation simpler.

The bill gives public institutions seven days to inform the Department of Education of any final non-default judgment against them pursuant to the Act, and gives them 30 days from that time to submit a report with evidence that they are no longer in violation of the Act as decided through the court process.

The more aggressive enforcement mechanism comes in the form of tying eligibility for Title IV funds to compliance. Public institutions that lose a lawsuit under the Act, lose any available appeals such that the result is final, and those that fail to submit the paperwork described above will lose eligibility for Title IV funds. They do not regain eligibility until they submit the paperwork and the Department reviews it to determine that they are no longer violating the statute and the court order. However, reinstatement does not take effect until the next calendar year.

Arguably, this consequence is appropriate and easy to avoid, since institutions are already under legal obligation to comply with final court orders. But, on the other hand, loss of Title IV funds for even a year could be a death sentence for an institution. Every student relying on federal financial aid would lose a year of access to those funds if they stayed enrolled at that institution.

HxA will be urging Congress to consider building in more opportunities for cure before this consequence is faced and we will also be urging it to consider other ways they can make the consequences less devastating for students.

Concluding Thoughts

When legislatures propose or enact free speech protections for students at public institutions, one inevitably hears the arguments that the legislation is unnecessary. Critics wonder why lawmakers are proposing solutions if remedies under the Constitution already exist.

But despite over 50 years of Supreme Court case law making it clear that the First Amendment applies in full force at public institutions of higher education, approximately 84% of the public institutions' policies FIRE surveyed in its 2024 Spotlight on Speech Codes Report still maintain policies that either clearly violate free speech standards or give campus administrators discretion to do so. Clearly, relying on individuals to sue under the First Amendment has not been sufficient to solve the problem.

Hopefully, setting clear standards provided already by courts and providing a streamlined cause of action, so aggrieved parties can bring simpler (theoretically less costly) lawsuits will be enough to lead most public institutions to make helpful reforms.

There are undoubtedly provisions in this bill that are outside the scope of HxA’s mission, which we will not weigh in on. However, we are pleased to support the provisions of the bill that:

• call on nonsectarian institutions to adopt the Chicago Principles or similar statements in support of campus free speech and open inquiry;
• criticize—and at public institutions, forbid—the use of political litmus tests in the admissions process as well as in the processes for hiring, firing, and promotion;
• require all institutions seeking Title IV funds to disclose their policies on free expression, freedom of association, and, where applicable, religion;
• ensure that student organizations will not be denied access to student activity fees on account of their disfavored views, because those fees will be allocated under published content and viewpoint- neutral criteria[.]

Now that the bill is in the Senate, we will be looking at potential ways language in provisions we favor can be improved to avoid unintended consequences or to provide greater clarity. We’ll also explore whether there are opportunities to address additional threats to academic freedom, currently ignored in the legislation. Finally, we will also be urging Congress to consider softening the enforcement section because of the terrible cost students at an institution would endure if their institution lost access to all Title IV funds.

With Heterodox Academy’s policy team now in place, we will now be able to engage lawmakers from all parts of the political spectrum to provide our analysis of their proposals, and we are looking forward to sharing our views with the public.