Trustees | Freedom of Expression

To Punish Disrupters, Or Not? New Recommendations To Restore Free Speech On Campus

FORBES   |  May 31, 2018 by Tom Lindsay

Just how bad is the state of free speech and debate on America’s campuses? In March 2018, Gallup/Knight looked to answer this question through conducting a survey of more than 3,000 college students. The results are frightening: The survey reveals that 61 percent of American college students find that their school prevents some students and faculty from openly declaring their views because others might deem them “offensive.”

Perhaps worse, the new poll shows that a majority of today’s college students have become comfortable with their intellectual chains: Another survey question asked them to decide whether free speech or “inclusion” matter more. A majority (53 percent) opted for inclusion, whereas 46 percent tapped free speech as the more important of the two.

What can be done? In an attempt to find answers, the nonpartisan American Council of Trustees and Alumni (ACTA) commissioned historian and constitutional law scholar, Joyce Malcolm, to report on the crisis and offer recommendations. Her report is well worth reading, and her recommendations are thoughtful.

First among her recommendations is to call attention to the University of Chicago’s courageous statement on free expression, penned in 2015, as the free-speech atrocities were beginning to rock our campuses and country. Malcolm quotes this synoptic statement from the Chicago Principles: “The University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.”

Malcolm calls our attention to the good news that, at present, 34 “colleges, universities, and university systems have adopted or endorsed the Chicago Principles or a substantially similar statement.” As I noted here, my home state of Texas, the second most populous state in the Union, has yet to boast even one school that has endorsed the Chicago Principles.

While Texas schools slumber, “schools like Purdue University, which was the first public institution to adopt the Chicago Principles, are working to weave the Principles into the fabric of student life by including students in the voting process for adopting them and by integrating the ideals of free speech into orientation activities for all first-year students.”

Purdue’s approach to restoring free speech on campus through including it as a discussion topic at freshman orientation agrees with the recommendation of the Goldwater Institute’s model proposal to restore free speech on campus, about which I wrote here. Purdue’s approach, Malcolm argues, “merits a closer look” by colleges and universities seeking to do likewise.

Specifically, Malcolm lauds the manner in which Purdue president, Mitch Daniels, in concert with the university’s board, “joined forces with student leaders, and productively responded to an outside evaluation that showed where there was room for improvement.” In response, Purdue both adopted the Chicago Principles and clarified the vagueness in its policies pointed out by the nonpartisan free-speech watchdog, the Foundation for Individual Rights in Education (FIRE). Purdue moved up from FIRE’s “yellow light” rating (which signifies that some of the school’s policies “could too easily be used to restrict protected expression”) to its highest rating of “green light” (which signifies that the school has no free speech violations).

Most important for Malcolm is the fact that “Purdue did not stop there,” because it recognizes that its academic mission requires “transforming student hearts and minds” about the need for academic freedom. Key to this transformation is its “innovative efforts to create meaningful orientation programs” to enable students to glean the indispensability of free speech to both liberal education and American democracy.

We can all join Malcolm in her hope that Purdue’s achievements will “challenge” other schools to “recognize that establishing and maintaining America’s vibrant heritage of intellectual freedom is within their reach.”

Additionally, Malcom recommends that all colleges and universities abolish restrictive campus speech codes; provide police protection for both speaker and audience “if there is reason to believe there will be a disruption”; protect the right to protest peacefully in venues that will not “cause speakers and scheduled programs to be shut down or silenced; and remain neutral on “issues of public controversy, leaving the debate to individuals.”

To be sure, while Malcolm defends the primacy of campus free speech, she grants that “inclusion is crucial to the success of higher education and the nation.” However, in the absence of a robust protection of free speech, “inclusion will be a vanishing hope.” Neither inclusion, nor any other societal goal, for that matter, can rest secure after the First Amendment has been defenestrated.

Finally, Malcolm recommends that all colleges and universities seek to guarantee that students as well as faculty both understand the primacy of free debate and are “well-informed of the official policy.” Tied to this is the need to clarify both student and faculty codes of conduct that speech disruptions and/or harassment of invited speakers “will be strongly disciplined. For students, that typically includes suspension or expulsion.”

However, it was on the issue of discipline that some in the Texas Legislature last session raised concerns. Texas’ campus free speech bill during last year’s legislative session ultimately foundered. But the University of Wisconsin System regents voted not only to include Goldwater’s sanctions but to make them tougher than Goldwater proposed. At the same time, the North Carolina legislature passed a version of the Goldwater Institute’s free speech model proposal that, although stripped of Goldwater’s mandatory disciplinary provision, contains other powerful mandates in its law that relate to discipline for shout-downs. The North Carolina law mandates that the university system create a set of uniform penalties for suppressing the speech of others. And crucially, it makes the administrative handling of discipline for speech suppression a core requirement of the annual oversight report to be issued by a subcommittee of the North Carolina Board of Governors. (This provision came also from the Goldwater Institute proposal.) Technically, the board subcommittee report has only the power of sunlight. But a report controlled by the employers of administrators and issued to the state legislature will prove salutary, nonetheless.

This will be one of the questions going forward in the movement to restore campus free speech: Are disciplinary sanctions required to ensure protection of campus free speech, or are official policy statements and freshman orientation seminars on free speech sufficient to stem the tide of censorship?

I have my doubts, but I don’t pretend to know the answer, which only time will likely reveal. What I do know is that, if the policy is to work without sanctions, each university that adopts it must integrate its teaching of the primacy of free speech into every possible aspect of university life, in the manner that Purdue has done.

Having taught in colleges and universities for over three decades, I know that students never take any lesson more seriously than they perceive their professors and administrators to take it. That is to say, to restore free speech, universities will have to lead not only by changing policies but also, and more important, by example.


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