The Volokh Conspiracy
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The top committee representing faculty at the University of Minnesota has unanimously advanced for further consideration a series of strong recommendations for protecting speech on campus. The recommendations include a proposal to empower a university-wide office of "free-speech advocate" to monitor investigations of speech by university offices and officials. The move comes after recent incidents in which university professors were investigated for months by equity and diversity officers for using a depiction of Mohammed to promote a panel on free speech. It also comes after speakers, including a prominent Israeli academic delivering a lecture, were shouted down by protesters. The University Senate will discuss free speech at its meeting this Thursday.
In March, the Faculty Consultative Committee (of which I am a member) approved by a 7-2 vote a set of four Free Speech Core Principles that declared free speech the "paramount value" of a public university, more important even than fostering a campus climate conducive to equity and diversity. It also affirmed that "no member of the University community has the right to prevent or disrupt expression."
On April 21, the FCC approved an Addendum containing a more lengthy explanation of the Core Principles and of the reasons why the University needs to reaffirm its commitment to free speech now. Also, at its April 21 meeting the FCC unanimously approved for further discussion a set of five Recommendations for protecting speech.
The Recommendations for action by the university include "foster[ing] understanding of the meaning and value of free speech" by disseminating the basic principles and requiring "administrative and investigatory offices of the University" to "protect free speech in carrying out their duties and exercising their powers." The FCC also urges the university to "vigorously protect free speech when serious disruption is anticipated or actually occurs" by identifying disrupters and imposing appropriate sanctions.
A more far-reaching proposal by the FCC is to "create a position of free-speech advocate or vest the powers of a free-speech advocate within the existing faculty governance structure." The problem identified by the FCC is that:
Investigations by various University offices-including but not limited to EOAA [Equal Opportunity and Affirmative Action] and Human Resources-sometimes implicate free speech values. Yet despite the potential threat to free speech posed by such investigations, it is not clear that University investigatory offices see it as their duty to consider the effect of their investigations on the climate for free speech. They do not necessarily internalize the value of free speech at a public university. Their focus is on cleansing public discussion so that it is inoffensive. Otherwise, they fear, the University will be unwelcoming to some in the community. The effect is to create an imbalance by which protected speech is subordinated to other values. But speech may not be curtailed simply because it is offensive. And it is the duty of every member of the University community-including those with investigatory power-to respect and protect speech.
Under the proposal, the free-speech advocate would "ensure that freedom of expression is respected and protected during any investigation in which the investigative office determines that all or part of the basis for the complaint is expression (whether or not the office determines that the expression is constitutionally protected)." Any recommendations for discipline or censure for a speech-based infraction would have to be reviewed first by the free-speech advocate.
Finally, the faculty committee suggested that the university should "establish minimum procedural protections for faculty, students, and others subject to investigation." The current problem is that:
University offices do not uniformly have or make public the procedures by which they conduct investigations that involve speech. Those accused of speech or other offenses against individuals or the community are not informed about what procedures govern. They are not told what their rights or privileges are. This lack of basic procedural safeguards is completely unacceptable, especially when the factual basis for a complaint is speech.
Investigations of faculty, students, and others by University offices should be governed by clear and transparent procedures that are made publicly available on the websites of all University offices with investigative powers. Failure to proceed without adequate procedural safeguards can create a chilling environment that undermines the freedom of speech, among other substantive University values.
Among other things, the committee recommends that University offices with investigatory powers should have "formal, written procedures" that "convey the process to be used in investigating the complaint," that "protect and adequately inform the faculty member or other University member of the basis for the complaint," and that "allow a meaningful rebuttal with the help of legal or other counsel, during the investigation process itself." The accused university member should be "informed of his or her rights in the investigation process," should be "informed about the punitive measures or other recommendations that might result from the investigation," and should be "informed of the right to appeal any conclusion reached, or recommendation made, by the investigative office."