Diversity training bill

I find it ironic that we are talking about this bill just after we passed a free speech bill. The free speech bill says no topic is off the table, not even topics that create discomfort or cause offense. But when it comes to diversity training, this bill prohibits “divisive concepts.” This bill makes it seem like you only care about one side of the speech. It seems disingenuous and undermines your credibility on free speech issues. In fact, one federal court held that the executive order on which this bill is based did violate the First Amendment. The ACLU, one of the country’s strongest supporters of free speech rights, condemned the executive order in the strongest possible terms.

A lot of this bill is odd. One provision actually prohibits telling people that “one race or sex is inherently superior to another race or sex.” Well, of course trainings shouldn’t do that, and they don’t. Another part prohibits “race or sex scapegoating.” The bill has a wordy definition of this, but I still don’t know what it means. A third part prohibits training that makes an individual feel “discomfort, guilt, anguish, or any other form of psychological distress on account of that individual’s race or sex.” Well, as a law professor I have probably unintentionally caused psychological distress to hundreds of students. I am sorry to say some of them are in this room. You just can’t control how people are going to feel as a result of education or training.

There is one part of this bill that is very problematic. It deals with unconscious racism, and it could lead some people to believe that ordinary implicit bias training is prohibited. That could affect the law passed last year requiring implicit bias training for police and could discourage state government agencies or universities from offering that training. And that is a problem, because implicit bias is real and needs to be addressed.

What do we mean by implicit bias? In my Tort Law class, we talk about self-defense to assault and battery. Many studies – confirmed in many different ways – show that people are more likely to mistakenly perceive a weapon in a person’s hand if that person is black than if that person is white. This misperception often leads to the unnecessary use of force in response. All I can say is, I hope it is implicit bias that causes people to use violence against unarmed people of color, because the alternative explanation is much worse.

There are so many other examples that I have seen and heard of myself. One of my black students was assumed to be a criminal by a courthouse security guard when the student showed up to represent a client as part of our legal clinic. Another black university student was pulled over so many times by police for no reason that he started keeping extra brake light bulbs in his glove compartment. A black female law graduate began working at a law firm and was told that a client preferred to work with a white male associate. Again, I hope all of this is implicit bias, because the alternative explanation is much worse.

When these things happen over and over, in repeated and predictable patterns, they are no longer isolated incidents. They are systemic. That is why these trainings talk about systemic racism. These are things our police and other state government employees need to think about as they are dealing with different kinds of people in their work. And these are things our university graduates need to think about before we send them out into the world.

 

In supporting this bill, Representative Holt has quoted Dr. Martin Luther King’s aspiration that people “not be judged by the color of their skin but by the content of their character.” I share Rep. Holt’s love of those immortal words. They are simple, beautiful, unassailable. But we should remember that those words were from Dr. King’s “I have a dream” speech. Dr. King’s dream that people would not be judged by the color of their skin was exactly that – a dream. It was not the reality when he spoke those words in August 1963. It was clearly not the reality when he was murdered nearly five years later. And it was still not a reality nearly sixty years after that, when last summer, another black man named George Floyd was murdered slowly and deliberately in broad daylight.

 

Our schools and universities must prepare our students for the world we live in. And our state government should try to educate all of their employees about the implicit biases that lead to disparate treatment in the first place. This is important work. But let’s be clear: facilitating conversation and debate about controversial issues like race and gender is no picnic. It is hard. At the University of Iowa, we have tens of thousands of students, and thousands more faculty and staff. We have people of every race and gender. We have people from all over the world. We have people of every religion and political viewpoint. Diversity training on a campus like that is a heroic effort. The same is true of many of our public schools, especially in the larger school districts like the Ames school district.

This work is hard, and this bill will make it harder. It will create a chilling effect on these kinds of trainings, and I am sure that people will fear being hauled into the Government Oversight Committee or some other forum. That committee has been highly critical – even hostile at times – toward the people conducting the trainings discussed in this bill. The administrators engaged in this work have admitted mistakes and said they are working to do things better. But it is easy to armchair quarterback these trainings. It’s easy to pick them apart based on your own personal views or a few complaints you’ve received from people who share your views. It is a lot harder to do this work on the ground when you have to consider thousands of people with all different life experiences and perspectives. It is easier to tear down than to build up.

Finally, this bill also sends a terrible message about our state. We keep talking about our declining population and our need to attract businesses and a good workforce to the state. But young people, professionals, people of color, and many others will not want to live in a state with these kinds of laws. We have seen negative response from similar bills around the country: the NCAA withdrew from North Carolina after the transgender bathroom bill there, and numerous businesses boycotted Arizona after it passed anti-immigration legislation. Even if this bill only applied to our universities, which is where it started, Iowa is already receiving negative national attention for bills like this that micromanage curriculum and other aspects of higher education. Forbes Magazine, one of the world’s top publications on business and the economy, recently ran a story entitled “Want A State Legislature That Likes To Meddle With Higher Education? Move To Iowa.” The article says:

“…The 89th Iowa General Assembly is reaching new heights of legislative overreach this year.

From bills that would eliminate tenure to those that would dictate curriculum, control how non-state funds are used, and mandate how many in-state students must be accepted into medical and dental schools, Iowa legislators have proposed an array of bills intended to tie the hands or clip the wings . . . of its public universities.

…The Iowa General Assembly needs to recognize the potential damage these ill-considered bills could have on its public universities. Both the University of Iowa and Iowa State University are member institutions in the prestigious Association of American Universities, and the University of Northern Iowa is a very highly regarded public comprehensive institution. It has taken years to build these institutions into the educational jewels each of them are. They deserve better than the dose of bad legislative medicine that some Iowa lawmakers currently seem determined to hand out.”

That is from Forbes Magazine. Clearly the editors at Forbes believe that this kind of bad policy and micromanaging affects business and the economy. This is just embarrassing. 

The reality is that we continue to have racism, sexism, and other forms of discrimination and bias in our country. Although we have made some progress over the years, there is still much work to be done. Our people, our economy, and our state depend on it. We need diversity training because we must educate people about what is happening in the world -- the real world, not the dream.