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Policymakers | Freedom of Expression

Can The Feds Protect Campus Free Speech?

FORBES   |  August 13, 2020 by Michael Poliakoff

It is a sad irony that freedom of speech is under threat on college campuses. From Galileo onward, history is replete with examples of what happens when the inquiry that leads to discovery is derailed. For 25 years, the American Council of Trustees and Alumni, which I serve, has advocated before legislatures and boards of trustees for the protection of campus free speech. Most recently, I was a signatory to the Philadelphia Statement on Civil Discourse. It is an ongoing battle.

Last week, Senator Tom Cotton, along with fellow Senators Mitch McConnell, Kelly Loeffler, and Kevin Cramer, introduced the “Campus Free Speech Restoration Act” (CAFSRA) as a long-needed remedy. The bill addresses the failure of so many American institutions of higher learning to ensure a campus that protects rather than obstructs what Yale’s C. Vann Woodward Report of 1975 called “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable.” If passed, CAFSRA will apply the Big Stick of federal intervention to public institutions that fail to honor the First Amendment. Private schools that violate their own stated free speech policies would also be subject to severe sanctions.

The initiative is timely, and its goals are impeccably virtuous. But it is a long way from a bill’s introduction to the final form of its passage, and this might be a good time to consider the context, collateral effects, and contingencies of its application.

The incentive for institutions to comply with the CAFSRA is enormous. The Big Stick that the bill proposes is rendering a noncompliant institution ineligible for federal funding. For many colleges and universities, this would mean insolvency and demise.

For such high stakes, there must be bright lines to guide behavior, and therein the bill encounters some significant challenges. Some provisions, such as the withholding of federal funds from public institutions that maintain policies in violation of the First Amendment, are unquestionably overdue: The persistence of unconstitutional speech codes is a disgrace that has long corrupted campus culture. Other provisions are less clear.

Inevitably, high-spirited college students will test the boundaries of the expressive activities protected by the law in the “generally accessible outdoor area” on which the bill places significant focus. The provisions of the proposed legislation as written may inadvertently provide shelter and legal protection for some programs that few would deem appropriate for public spaces. It is not unreasonable to ask whether the proposed legislation would extend federal protection, for example, to an outdoor drama or performance art utilizing sex toys, as expressive activity. Anyone who has worked on a college campus will know that this scenario is not at all beyond likelihood. Given that an adverse finding would jeopardize its access to federal funding, would the college administration dare to demand that such events not take place in a “generally accessible outdoor area” that members of the public with young children might frequent? Would this bill make such matters an occasion for litigation, rather than simply finding reasonable accommodations for the avant-garde that are not in the faces of the general public?

The proposed legislation states that the Secretary of Education will enforce the new law, and that, of course, means possibly promulgating negotiated rules to define further the reach of the legislation. There will soon be a presidential election, and it may be that the new Secretary of Education might determine, for example, that there is a “compelling government interest” in discouraging speech deemed hostile to protected minorities. In other words, the new legislation could be heavy on penalties but less effective than hoped in protecting viewpoint diversity. While it is purely logical that the federal government exercise its interest in ensuring that the colleges and universities that accept public money abide by the First Amendment (or, in the case of private institutions, their own stated policies on free speech), doing that fairly and effectively is no small challenge.

Ultimately, top down efforts at cultural change are likely to be infeasible and, even at their best, cannot be fully effective. What is crucial for the college students who will join the workforce is that they internalize the values of debate, discussion, and respectful disagreement. Seventy-four colleges and universities to date have adopted the Chicago Principles on Freedom of Expression, the gold standard for an institutional commitment to academic freedom, or a similar pledge to the free exchange of ideas. It is a disgrace that so few institutions have stepped forward. Every faculty assembly and every board of trustees at every one of America’s degree-granting colleges and universities, all 4,360+ of them, should by now have done so. It ranks up there with clean air and water on campus. Arguably, some kind of legislative kick is appropriate to get American higher education seriously to foster and protect free speech. The challenge is how to aim it. 

South Dakota’s lightly prescriptive intellectual diversity bill, H.B. 1087, is a model worth considering. (Disclosure, my employer, the American Council of Trustees and Alumni, gave testimony supporting this bill.) Passed in 2019, the bill requires all of the state’s public universities to make intellectual diversity an institutional priority and to report on their progress, whether it be in the form of hiring faculty with varying viewpoints or bringing unconventional speakers to campus. The magic of the bill is that it respects institutional autonomy in educational decisions. So far, it has met with a remarkably high level of acceptance from the state Board of Regents.

In its austere majesty, the First Amendment reads, “Congress shall make no law . . . abridging the freedom of speech.” The Constitution does not welcome Congress into such matters, and when congressional intervention is necessary, it must happen with an abundance of circumspection and caution.

Bravo to Senator Cotton and his cosponsors for taking on the challenge. There is significant work ahead to find just the right formula for success. What might be most fruitful is legislation that provides surgically targeted disincentives for institutions to discourage free speech and financial incentives for positive programming to create a culture in which the free exchange of ideas flourishes and becomes a lifelong habit for young American citizens.

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