In the 1957 case of Sweezy vs. New Hampshire, the U.S. Supreme Court warned states that “liberties in the areas of academic freedom and political expression” were “areas in which government should be extremely reticent to tread.”
Since then, courts have generally followed a rule of thumb that states can specify what college instructors can teach, but not what they conclude about it. In other words, as long as professors stick to talking about things relevant to the course topic and their own area of expertise, the First Amendment strongly protects their liberty to present whatever viewpoints they feel are relevant to discuss.
This distinction – that the state gets to choose the topic and faculty decide how to pursue it – has largely held for the past seventy-five years or so. In Ohio, the state legislature broke with this precedent when it passed its claimed omnibus higher education reform bill, Senate Bill 1. A small, unremarkable provision of that law tip-toed past the larger controversies raging over the bill and quietly stepped over that line.
Buried deep in the 42 page law is the requirement that newly state-mandated civics courses include reading at least “five essays in their entirety from the Federalist Papers.” Fine. This would pass the test affirmed this summer in Pernell v. Florida, by the U.S. Court of Appeals for the 11th Circuit, that held that the government can dictate programs but not viewpoints. But the next short sentence opened the door to blowing up this distinction.
“The essays shall be selected by the department chair.”
By itself, having a department chair determine which of the 85 Federalist Papers are most worthy of teaching is probably not a clear violation of academic freedom principles (though given the range of the Federalist essays, which ones a professor chooses to highlight can be very ideological).
But for the first time, it specifically establishes in Ohio law the power of a state bureaucrat (yes, Virginia, chairs and deans are government functionaries, ultimately beholden to their bosses rather than their own principles) to pick and choose how a particular subject is to be taught.
S.B. 1 was passed in the spring of 2025, and in the year since, its sponsor has been unsettled by how one aspect of it has been rolled out. State Sen. Jerry Cirino, R-Kirtland, discovered that some professors were not going to teach a celebratory and patriotic version of American history and he introduced a follow-on bill, S.B. 461, to, as he put it, “close the loophole.”
Senator Cirino has been remarkably candid about his determination to legislate the viewpoints that he wishes to see taught. He recently spoke on Ohio Senate Majority Communications Director John Fortney’s podcast:
Fortney: There’s even a new textbook called Unpatriotic Civics, explicitly designed to fulfill the requirements of Senate Bill 1, but “without endorsing the patriotic narrative.” That’s how far some of these leftists will go to try and get around the law.
Cirino: Well, we’re not going to have any of that in the state of Ohio … So what we’ve done in Senate Bill 461 is we set it up that the directors of the five centers as a group need to be the ones in the future who will be approving the courses that qualify … That way we are not going to have any of this funny business which the academicians will definitely attempt to do, putting courses in there that don’t meet the intent of the legislation that we passed.
For full disclosure, I am the author of Unpatriotic Civics and its companion book, The Civics of Pluralism, that will be made available at no cost to all Ohio students through the Ohio Open Ed Collaborative, a project of the Ohio Department of Higher Education.
Cirino didn’t fully explain his own bill, because S.B. 461 does much more than merely approve courses. The law gives his Ohio Civics Board “sole and exclusive authority over all aspects of American civic literacy courses…including course modality, syllabi, class size, faculty teachers, and course content.”
This is a level of control reminiscent of the way the Soviet Union would station political overseers at desks next to government officials to ensure they toed the line and to report on their loyalty.
I suspect that such a Civics Board will look unfavorably upon a textbook that highlights facts including that slavery was a major issue in the American Revolution, the idea that many patriotic Americans viewed the Constitution of 1787 as an aristocratic coup, that Dr. Martin Luther King’s Letter from a Birmingham Jail was in violation of the prohibited concepts in S.B. 1, and that Adam Smith was not a consistent believer in the free market but wanted state controls over major portions of the economy.
Cirino has also explained that he established the structure of the Ohio Civics Board to insulate it from any popular attempts to check its power. As envisioned in S.B. 461, the board is composed of five GOP loyalists who are not elected and cannot be removed or appointed by the governor. They will enjoy a budget that would be the envy of every college dean in the state.
Not only will they directly receive the tuition dollars of students taking their classes, but were the Ohio legislature to decide to cut its share of funding to these civics centers, the university must make up all the shortfall in their budgets from its own general funds.
All of these barriers to democratic controls were explained by Cirino this way:
“The current chancellor is doing a really good job of ferreting out, you know, some of the courses that have been proposed to qualify, but what (S.B.) 461 is attempting to do is to solidify this a little bit more and protect it because there will be future governors, future chancellors, future legislators, who may want to, you know, water things down.”
Ohioans who care about the quality and independence of their universities and colleges might want to pay attention to S.B. 461 this fall.
This story is republished from the Ohio Capital Journal under a Creative Commons license. View the original article.
