Federal Intervention in Campus Protests Is Going Too Far
Department of Education settlements with protest-wracked colleges threaten censorship by bureaucracy.
Campus protests that started out as anti-Israel and too often slid over into flat-out antisemitism and pro-terrorist advocacy shocked much of the nation in recent months. It's enough to make anybody wonder what kind of education is going on at institutions of higher education, and just what has happened to many of the students attending them—especially at elite schools. But one body that really should butt out unless the protests cross beyond the bounds of protected speech is the government. State attempts to police speech have a lousy history and threaten to turn even the most hateful protesters into martyrs at a time when society at large is already delivering consequences.
You are reading The Rattler from J.D. Tuccille and Reason. Get more of J.D.'s commentary on government overreach and threats to everyday liberty.
Censorship by Bureaucracy
"The Department of Education is required by law to guard against discrimination on the basis of race, color, or national origin in higher education," the Foundation for Individual Rights and Expression (FIRE) noted last week. "Now the agency is telling college and university administrators they can only achieve this important goal by violating the First Amendment."
FIRE points to agreements between the Department of Education's Office for Civil Rights (OCR) and the University of Michigan, the City University of New York, and Lafayette College, which were under investigation for their handling of campus protests in the wake of Hamas's October 7 attack on Israel. The agreements indicate official dissatisfaction with how the schools managed responses to the protests and require stronger action in the future.
"OCR found no evidence that the university complied with its Title VI requirements to assess whether incidents individually or cumulatively created a hostile environment for students, faculty, or staff, and if so, to take steps reasonably calculated to end the hostile environment, remedy its effects, and prevent its recurrence," reads the agreement with the University of Michigan.
FIRE objects that federal bureaucrats seem to want the university to treat expression by students, whether or not it's coordinated, as contributing towards some critical mass of bad vibes. Once an invisible line of cumulative nasty statements is crossed and a hostile environment considered to exist, the document suggests that official intervention becomes necessary.
How is that point to be determined?
The agreement commits the University of Michigan to administer a "climate assessment" to evaluate the degree to which "students and/or employees are subjected to or witness discrimination and harassment based on race, color, and national origin." The assessments will then be used "to identify responsive steps for OCR's review and approval" in dealing with hostile speech on campus.
"This unconstitutional mandate rewrites the rules of campus speech," responded Alex Morey, FIRE's vice president of campus advocacy. "OCR has invented a completely new standard that needlessly pits First Amendment rights against federal anti-discrimination law, dangling the threat of punishment over every discussion."
Speech Is Protected, Even When It's Unpleasant
That's not to deny that much of what has been said at anti-Israel protests has been despicable. While many participants called for an end of war out of concern for the people of Gaza, some Jews have been told to "go back to Poland." Hamas's military wing was urged to "kill another soldier now." And the October 7 invasion and massacre has been openly and repeatedly praised.
But that's hateful speech which, it bears repeating, is protected by the First Amendment.
Overt harassment and acts of violence are not protected. Firebombings and assaults are fair game for police attention. That's true no matter the political positions of those who are guilty.
But requiring "climate assessments" of schools to determine if campus discourse has passed some invisible hostility threshold that necessitates official intervention goes too far. Any such assessment will inevitably be subjective and tend towards the restrictive side as administrators fear drawing the wrath of federal bureaucrats and the financial sticks they wield as potential penalties.
Government Sucks at Policing Speech
The truth is that government officials have a terrible track record when it comes to monitoring speech and protests. That was true in the 1970s when the Church Committee found the FBI "has placed more emphasis on domestic dissent than on organized crime" and it was true more recently when the feds fingered Revolutionary War imagery as indicative of violent extremism.
Few areas of life are improved by government intervention, and political debate is not an exception. Government action risks turning protesters who might be rightly called out by peers for bad causes and hideous statements into martyrs joining the ranks of dissidents surveilled by the state.
Free Speech Meets Social Consequences
In fact, except in the case of violent conduct, government action regarding these protests is largely unnecessary. The protests, by and large, have alienated Americans. In May, YouGov found that "Americans are more likely to strongly or somewhat oppose (47%) than support (28%) pro-Palestinian protesters on college campuses."
That has carried over to how society at large treats protesters as they graduate. Last month, Intelligent, a college information firm, polled job-searching college students and graduates. It discovered that "3 in 10 pro-Palestine student activists had a job offer rescinded in the last six months." More than two-thirds said the job losses were definitely (31 percent) or probably (37 percent) due to their activism. Would-be employers seem to care about the issue as they consider new hires; more than 70 percent of those surveyed say they were asked about participation in pro-Palestinian protests during their interviews.
Sometimes, when you use your right to free expression to say horrible things, other people don't want to be associated with you. That's a more appropriate penalty for a free society than government-mandated assessments of campus speech climates.
Of course, many colleges created their own problems by failing to consistently protect speech in the past and to clarify the point beyond which legally actionable harassment and actual violence would not be tolerated. That left them scrambling when (some) campuses exploded in a new round of protest to define boundaries and apply established rules.
For those interested, the Chicago Principles, developed in 2014 at the University of Chicago are a good place to start. They're certainly better than letting federal officials impose censorship by bureaucracy.
