Eric Posner—a University of Chicago Law School professor and son of famed federal judge Richard Posner—makes the case in Slate that college students don't really deserve free speech or due process rights. He also chides libertarians outraged by campus censorship for thinking that 18-year-olds—infants, in his view—are intellectually capable of thriving in a non-coercive environment.
Conservatives and libertarians are up in arms. They see these rules as an assault on free speech and individual liberty. They think universities are treating students like children. And they are right. But they have also not considered that the justification for these policies may lie hidden in plain sight: that students are children. Not in terms of age, but in terms of maturity. Even in college, they must be protected like children while being prepared to be adults.
There is a popular, romantic notion that students receive their university education through free and open debate about the issues of the day. Nothing could be farther from the truth. Students who enter college know hardly anything at all—that's why they need an education. Classroom teachers know students won't learn anything if they blab on about their opinions. Teachers are dictators who carefully control what students say to one another. It's not just that sincere expressions of opinion about same-sex marriage or campaign finance reform are out of place in chemistry and math class. They are out of place even in philosophy and politics classes, where the goal is to educate students (usually about academic texts and theories), not to listen to them spout off.
But it's not just inside the classroom where students should be prisoners of tutelage, argues Posner:
Most of the debate about speech codes, which frequently prohibit students from making offensive comments to one another, concerns speech outside of class. Two points should be made. First, students who are unhappy with the codes and values on campus can take their views to forums outside of campus—to the town square, for example. The campus is an extension of the classroom, and so while the restrictions in the classroom are enforced less vigorously, the underlying pedagogical objective of avoiding intimidation remains intact
Second, and more important—at least for libertarians partisans of the free market—the universities are simply catering to demand in the marketplace for education. While critics sometimes give the impression that lefty professors and clueless administrators originated the speech and sex codes, the truth is that universities adopted them because that's what most students want. If students want to learn biology and art history in an environment where they needn't worry about being offended or raped, why shouldn't they?
First, let's zero in on students having to "worry about being offended or raped." Note that these two concerns, casually presented side-by-side in the article, are not remotely comparable. Rape is a violent crime that is rightly illegal under state and federal laws; offense is not. Students absolutely have the right not to be raped, and universities are legally obligated to provide reasonable protections for students. While it's impossible to guarantee anyone's safety all the time, and rape remains a reality for many women, students shouldn't really live in constant fear that they might be raped, since it happens rarely—all too frequently, sure, but rarely. And campuses are relatively safe places for women, despite headlines implying the contrary.
Offendedness is an entirely different matter, and there's every reason to think that artificially protecting students from it is not ultimately in anyone's best interests. If a student manages to graduate college without ever having been offended, would we say that the experience was worthwhile? Doesn't growing up, becoming educated, and entering civil society require that young people learn to confront uncomfortable ideas? Real-life does not come with trigger warnings, and a person who has spent four years in the good-feelings Matrix will not be prepared to interact with actual human beings.
Posner's claim that 18-year-olds are actually biologically incapable of handling free speech was expertly dismissed by Foundation for Individual Rights in Education President Greg Lukianoff when he encountered this argument while testifying before the U.S. Commission on Civil Rights last year, so I'll let him rebut it:
MR. LUKIANOFF: I've rarely heard that argument made so directly. Essentially, just to summarize it, the way I've heard it made in the past is essentially that what we're really saying is that 18- to 22-year-olds are children. And they must be therefore treated the same way as K through 12 are. They can't handle the real world. They can't handle the duties of citizenship. It's an argument that I've definitely heard.
And if you're saying that basically we should—that maybe below-graduate-level study should be ruled the same way high school students should be—I would disagree with you.
But that's definitely an argument that people should make that straight out, but you run into a couple moral and philosophical problems with that.
One of them is the moral and philosophical underpinnings of the 26th Amendment. Essentially, we have decided in this country that 18-year-olds… that is considered the age for majority.
We also send our 18-year-olds to war. Unless you're actually also willing to make the argument that nobody below the age of, I don't know, 22 should go to war, and we repealed the 26th Amendment, we've got a serious problem.
MR. LUKIANOFF: I just want to make one last point, and do not forget that some of the greatest contributions of colleges and universities come out of their graduate and Ph.D. programs. And so what I've watched is people try to argue that because of the presence of some 15- to 16-year-old super-geniuses at some of these campuses, that we should be therefore limiting speech on college campuses, forgetting that [that] would also limit the speech of 45-year-old Ph.D.'s.
Posner's notion that this is merely the education market giving customers exactly what they want is also ludicrous. Higher education is not a free market by any stretch of the imagination. The market is dominated by public universities and publicly-subsidized private universities. Many of these institutions are explicitly required by the U.S. Constitution to grant their students free speech rights, no matter how desperately some segment of the student population craves censorship.
To pretend that administrators have played a limited role in the growth of campus censorship in the last two decades is similarly nonsensical. Administrative bloat is an undeniable problem at many colleges; campuses are flooded with vice presidents for student life and assistant directors of residential activities. These administrators don't sit just sit around twiddling their thumbs (not all the time, at least)—they are actively policing speech on campus.
But he is right, perhaps, that all too many students actually want and expect to be treated like children. This is a real problem—worsened by years of letting the hecklers win—not the correct state of emotional development for college students.