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Securing Free Speech on Campus, Part I

If universities do not take steps to address their campus free speech problems, politicians will do it for them

President Donald Trump's proposed executive order on free speech in universities has once again turned a spotlight on the worries over campus free speech in the United States. There is substantial debate over just how extensive of a free speech problem college campuses actually have. Individual incidents of bad behavior on campus get extraordinary attention in the current political and media environment. There is little question that incidents such as the one Trump highlighted – a conservative activist getting punched in the face on the University of California at Berkeley campus – or myriad others – such as Charles Murray getting shouted down at Middlebury College or Heather MacDonald having her audience blocked from attending her speech at Claremont McKenna College – should be deeply disturbing and should be understood to be contrary to the values and mission of an American university. Unfortunately, there are students, faculty and administrators at many colleges who would fully endorse just such disruptive behavior.

What is much less clear is how widespread such incidents really are and whether they are becoming more common. In the age of social media and pocket cameras, nearly every incident has the potential to be recorded for posterity and broadcast far and wide, but even a decade ago such incidents could more easily fly under the radar. At the same time, the many more occasions on which Charles Murray and Heather MacDonald speak to a college audience without incident are easily overlooked. There is even some reason to hope that the campus speech situation is in fact improving compared to a couple of years ago, in part due to the work of organizations like FIRE and in part because the recent high-profile incidents were something of a wake-up call to many campus leaders who did not want their institution to become the next Middlebury or Evergreen State.

But it would be foolhardy to think that the free speech problems on college campuses are of no importance or will simply go away on their own. There is a great deal that can and should be done on college campuses to improve the free speech climate. As Trump's proposed executive order indicates, if universities will not take action themselves, they can expect that donors, trustees, and politicians will take action for them. Outside intervention, however, is likely to be crude, ineffective and overly politicized. One of the attractive features of American higher education is its diversity, and a one-size-fits-all solution cuts against the pluralism that we should want to foster. We should not welcome the idea of federal bureaucrats monitoring every college and university's student disciplinary practices or external speaker policies. We can hardly take for granted the good faith or the competence of the activists and politicians who are eager to use "free speech" as the cudgel with which to attack universities. Universities will be better positioned to withstand outside pressures if they get their own house in order. Moreover, universities should want to improve their own free speech situation because the quality of the intellectual climate on campus is intimately connected to the very reasons why universities exist in the first place.

Tomorrow I'll post some proposals for proactive steps that universities could take to improve the free speech situation on their campuses. A preview of the longer argument can be found here.

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  • Eddy||

    Re the idea of an executive order - can anyone enlighten me on whether there are actually any Congressional statutes which deny federal funds to censorship-prone colleges and universities? If not, what would be the basis for an executive order along such lines - wouldn't it be vulnerable just like trying to cut off funds to "sanctuary cities"?

    Or maybe if colleges/universities allow riots on their premises they can be denied anti-crime funding?

    I suppose it's necessary to add that I am aware there may be some law I'm missing here, so I'm genuinely asking for information.

  • Brett Bellmore||

    University administrations that are engaging in this sort of censorship, particularly where there's some indication that they're in cahoots with the violent protesters, could be gone after as violating 18 U.S. Code § 241. Conspiracy against rights

    "If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

    If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured—

    They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."

  • Brett Bellmore||

    Threats of administrative action could be construed to "oppress, threaten, or intimidate", and if the university can be proven to be acting together with the student groups that are supplying the violence, it becomes an open and shut case.

    This would require a DOJ that was seriously motivated to go to battle on this topic, of course. Maybe by Trump's second term, if he can start freely hiring and firing in the DOJ once Mueller is shut down.

  • Armchair Lawyer||

    Oh, there's much better precedent for an executive order being needed to enforce civil rights at a state university that won't enforce people's civil rights.

    JFK's executive order 11111.

  • Eddy||

  • Eddy||

    Not to be confused with JFK's order 69.

  • Armchair Lawyer||

    That's the one. If the national guard needed to be sent to the University of Alabama to secure civil rights in 1963, perhaps it's needed again at the University of California, to prevent more assaults and secure a different set of civil rights.

  • Sarcastr0||

    What would the national guard even do?

    It would be quite an interesting political move for Trump to move troops onto college campuses.

  • Brett Bellmore||

    Escort Charles Murray onto and off of campus?

    Heck, if I were President I'd cook up a scheme where disguised federal agents would be in the audiences of college speakers likely to draw violent protests, and would immediately make arrests for conspiracy against rights.

  • Sarcastr0||

    If he wants to turn the left against the FBI (along with a bunch of other people) that kind of agent provocateur move would do it.

  • Brett Bellmore||

    Let me know what the definition of "agent provocateur" is in your universe, would you? Because nothing I described matches the definition in this one.

  • Angammus||

    That order was predicated on Proclamation 3542 issued the same day, which is entirely about state resistance to a federal court order. There's a hell of a difference between saying you have general supervisory authority going forward and invoking your authority to ensure the faithful execution of the law in support of a duly issued federal court order.

  • NashTiger||

    Maybe a "Dear Colleague" Letter would suffice. Those seem to trump the Constitution

  • Junkie||

    If UC Berkeley were to decide that their official policy was to not prosecute perpetrators of left on right attacks, would that violate any existing laws? Would it be a 1A problem?

    I'm not saying that's what happened, but that's the story that the right was spinning at first.

  • Brett Bellmore||

    To be fair, they have done it before. This was a positive change in their behavior, possibly motivated by the fact that the people guilty of the assault neglected to wear masks, and so the university couldn't claim to not be able to identify them.

  • y81||

    It's funny how academics who have no problem with the federal government monitoring every aspect of every private employment relationship, every private mortgage transaction, and every private securities transaction (just to name a few), are suddenly up in arms at the thought of "federal bureaucrats monitoring every college and university's student disciplinary practices or external speaker policies." When you've forfeited public trust, you get regulated. Get used to it.

  • Perseus`||

    Academics are special people (in more ways than one) and aren't the least bit shy about demanding special privileges.

  • Jimmy the Dane||

    As a question of law, it is pretty settled that PUBLIC universities must abide by the First Amendment and that college student free speech rights, at least outside of the classroom, are pretty much the same as a guy standing in the public square. It is not "optional" for them to respect free speech. It is mandatory.

    Now how you go about enforcing this obligation at public universities gets a little bit more dicey. I don't see how it can be done via executive order and attaching strings to funding WITHOUT something more from Congress enabling such enforcement actions. When it cam to the Dear Colleague Letter non-sense about sexual assault and harassment the DOE linked that through Title IX (gender discrimination). There isn't a similar law permitting the executive to engage in administrative enforcement actions at least in the civil rights titles when it comes to plain jane free speech or other sundry constitutional rights.

    That said, even when the DOE launches a civil rights enforcement action is almost never actually touches federal funding. In fact I can't think of one single instance where the penalty was actual loss of funding. Not one. So even if an executive order can create a means for administrative enforcement it begs the practical question of whether or not the DOE will ever put teeth to it.

  • Armchair Lawyer||

    Same way it was done in 1963 at the University of Alabama with executive order 11111.

    If civil rights are being infringed, and the University won't stop, there's precedent.

  • Last of the Shitlords||

    All these problems stem from the time we started listening to dirty leftist hippies instead of reflexively beating them with batons.

    Beating a dirty leftist hippie is always the right call.

  • ||

    Bingo! Send in the troops.

    Maybe we could modernize it and just do a drone strike on the admin hall.

    Just kidding.

  • Plunderer Extraordinaire||

    Unfortunately I'm not sure it's so clear cut—federal courts are pretty divided on how to approach First Amendment limits on university regulation of student speech. Some do take the position that the university (excluding classrooms) is essentially a public forum, but most circuits that have applied forum analysis to university regulation divide the campus up into the various forum categories and often uphold substantial restrictions on speech (for example, a recent case out of North Carolina, Armstrong v. James Madison Univ., held that the campus rec center was not a public forum, and SCOTUS conspicuously stopped short of declaring universities public forums in Widmar v. Vincent). Other circuits don't even approach college campuses as forums, but rather apply an education-specific approach approach derived from Tinker (the Third Circuit is the most notable example, see DeJohn v. Temple University).

    It is mandatory for public schools to respect free speech, but courts are inconsistent in how great that respect has to be and how to analyze the cases—and that inconsistency makes judicial enforcement tough, so I understand the impulse to a more uniform executive enforcement (even if that enforcement is misguided/toothless).

  • Jimmy the Dane||

    I think you are talking about forum analysis when it comes to non-students accessing college campuses. If a person is a student or faculty that changes it up. Hence why I mentioned student free speech rights above specifically.

  • Plunderer Extraordinaire||

    That is the proper domain of forum analysis, but federal circuit courts have applied it to both students (O'Brien v. Welty, 9th Circuit) and faculty (Burnham v. Ianni, 8th cir.) speaking on campus where they clearly had a right to be

  • Jimmy the Dane||

    This is why I generally hate forum analysis...it is a great way for the courts to pass on real free speech constitutional issues.

  • Plunderer Extraordinaire||

    Amen

  • CJColucci||

    What is much less clear is how widespread such incidents really are and whether they are becoming more common.

    What is clear is that the answer to this question will have next to nothing to do with where people come out on this issue.

  • Lee Moore||

    such as Charles Murray getting shouted down at Middlebury College

    ..and the Professor who had agreed to debate him finishing up in a neck brace after she was attacked by protestors.

  • Last of the Shitlords||

    It takes a lot of bravery for a bunch of leftist men to gang up on one small old woman like that. Because that's just how tough progressive men are.

  • Lee Moore||

    Securing free speech on campus is not a worthwhile governmental objective, except where government campuses or government money is concerned.

    If a private college wishes to teach in an illiberal fashion, without permitting diversity of opinion, or free speech, within its faculty or student body, it's none of the government's business. One would expect that such an institution would attract only a modest number of students, but that's their business and that of their students.

    If some college simply wants to prepare the faithful for the End Time, without interruption from the unbelievers, whether the End Time is going to be brought on by fornication or fossil fuels, it should be left in peace to do so.

  • Brett Bellmore||

    Indeed, and if we could establish that as a general principle, instead of one that gets pulled out only when it's the Right upset about something happening at a college, I'd agree. But that's not the sort of commitment I would trust the left to keep.

  • Rossami||

    While I agree with your opening premise, as far as I've seen, essentially all the complaints about free speech on campus have in fact been in the context of government campuses. That is, either state schools or schools that receive federal funding (and rather a lot of it).

  • Jake Robinson||

    The only way for a private college to be free of federal regulations is to not accept any federal money. That includes federally guaranteed student loans. As far as I know, they can't refuse to accept federally guaranteed student loans. GovCo is everywhere.

  • Brett Bellmore||

    No, there's still Hillsdale college. Maintains its independence by not accepting any student who gets a lick of federal aid.

  • smartmuffin||

    Yeah, but the point is "government money is concerned" at basically every major university in the US except Hillsdale.

    And note that universities themselves have used "but if we don't do this the government can stop loaning to our students!" as an excuse for overzealous Title IX nonsense for years. Can't have it both ways.

  • Last of the Shitlords||

    Not one penny of federal funds should go to any university that features subversive Marxist ideology in any of its departments.

  • bernard11||

    Sometimes I think the main reason Hillsdale exists is so that it can be cited as a school that receives no federal assistance.

    If that's a school's main selling point it may not have much else to offer.

    More to the point, a college with 1500 undergraduates, which probably gets a fair amount of support because of its ideological stance, is hardly going to a model for education finance nationally.

  • grb||

    Well, at least this new right-wing hysteria about campus leftist terrorism is a break from the old right-wing hysteria on the Brown Menace across the border. My goodness, but aren't these right-types excitable? Not a day goes by that they're not collapsed back on the fainting couch, clutching their pearls and hyperventilating over some new horror. Today it's the Reign of Fear in our universities. Students are terrorized !!! Their Lives are in danger !!!! Frat house parties are being canceled !!!!!

    It's a wonder Trump hasn't already sent thousands of army troops to these schools to secure the situation - like he did to repulse the "invasion" of a few hundred ragged men, women, and children who reached the US-Mexico border on foot. Or maybe declare a national emergency - like he did when Congress wouldn't fund the projects he wanted. No doubt he'll soon tells us stories of terrorist-frat-boy-gangs, or blushing innocent coeds bound with duct tape. Right-types need drama in their lives, the poor dears. And they need their Daddy Trump to soothe their shattered nerves with manly resolute steely fortitude & action. Just like Churchill, huh?

  • Jimmy the Dane||

    Are you going to say the same thing when it comes to the Left whipping up the hysterical mob when it comes to guns?

  • TwelveInchPianist||

    "Well, at least this new right-wing hysteria about campus leftist terrorism is a break from the old right-wing hysteria on the Brown Menace across the border. My goodness, but aren't these right-types excitable?"

    Like the excitable right wingers at UC Berkeley that spent $800,000 on security for a "free speech week" that was ultimately canceled? Or $600,000 for Ben Shapiro?

  • Last of the Shitlords||

    GRB is a lying communist piece of shit.

  • Perseus`||

    Odd that the intersectional drama queens on (and off) campuses must resort to faking hate crimes to liven up their meaningless lives.

  • TwelveInchPianist||

    And now the media is furiously dividing the number of proven hate-crime hoaxes by the number of reported hate crimes to show that hate-crime hoaxes are rare to nonexistent.

  • Rev. Arthur L. Kirkland||

    I'll believe this guy is serious and worthwhile when he acknowledges the most pervasive problems in the field, those found on conservative-controlled campuses that teach nonsense, suppress science and history to flatter superstition, enforce speech and conduct codes, collect loyalty oaths, mock academic freedom, enforce silly dogma, and are granted undeserved accreditation despite teaching nonsense.

    Those who moan and rant about perceived flaws at our strongest schools, while issuing passes with respect to censorship and silliness at fourth-tier and unranked goober factories for partisan purposes, are low-quality people.

    Carry on, clingers. So far as your betters permit, that is.

  • Armchair Lawyer||

    "Your betters permit"....

    And you wonder why Trump is the President. Democracy, eh?

  • Rev. Arthur L. Kirkland||

    I seem to have lost my taste for political correctness recently.

    I now call a bigot a bigot; a half-educated rube a half-educated rube, a can't-keep-up backwater a can't-keep-up backwater; and a superstitious, unaccomplished, stale-thinking loser from a shambling community an ardent Trump supporter.

    Accuracy is a virtue.

  • Armchair Lawyer||

    You're entitled to your opinion. Cheerio.

    But just for fun, what's your opinion of Africa?

  • Last of the Shitlords||

    Arty is entitled to a series of savage beatings. Nothing else.

  • Rev. Arthur L. Kirkland||

    Africa, in general, would benefit from substantial improvement. Some virtuous leadership, good investment, modern education, and reason would be good starts.

  • TwelveInchPianist||

    "Africa, in general, would benefit from substantial improvement. Some virtuous leadership, good investment, modern education, and reason would be good starts."

    Wow. You would never say such a thing about Norway. Shame on you, Arthur.

  • I Callahan||

    Every time I think you couldn't possibly be a bigger asshole, you surprise me and exceed my expectations.

  • NashTiger||

    The most intolerant bigoted people in the US are older white Urban Progressives

    The Atlantic

  • NashTiger||

  • Rev. Arthur L. Kirkland||

    As Trump's proposed executive order indicates, if universities will not take action themselves, they can expect that donors, trustees, and politicians will take action for them.

    Are right-wingers prepared to have the Regents and Wheatons and Ouachita Baptists (and a hundred other substandard conservative-controlled campuses) held to the standards they propose to impose at Harvard and Berkeley and Columbia, or are they just providing another example of unprincipled, partisan Republican blowhards lacking self-awareness?

  • Jimmy the Dane||

    Just ignore Cuckland. He drank the kool-aid a long long time ago.

  • Rev. Arthur L. Kirkland||

    Enjoying the culture war, Jimmy? Do you like watching your nation trash your preferences?

  • Jimmy the Dane||

    Probably not nearly as much as you liked that kool-aid Cuckland.

  • TwelveInchPianist||

    Which side of the culture war is Catharine MacKinnon on, Arthur? Or Ronald Sullivan? Which one aligns with your preferences?

  • Rev. Arthur L. Kirkland||

    I'm on the side of reason, science, tolerance, education, progress, freedom, modernity, and inclusivity.

    You?

  • TwelveInchPianist||

    "I'm on the side of reason, science, tolerance, education, progress, freedom, modernity, and inclusivity."

    Wow, so the Progressive Catharine MacKinnon side is two much for even you, eh? I'm on the same side as you, Arthur. But I'm not sure we're winning. Harvard doesn't seem to be doing much to defend Prof Sullivan.

  • croaker||

    Do you like watching your wife get screwed by minorities with larger penises than you? Cuck.

  • TwelveInchPianist||

    "Do you like watching your wife get screwed by minorities with larger penises than you?"

    Easy there, croaker and Jimmy. There is plenty of room to attack the substance of Kirkland's comments, without resorting to comments about Kirkland's wife and Asian men.

  • Last of the Shitlords||

    Arty, we are only a single purge of you and your pals away from changing anything we want.

    If you live to see another sunrise, it is because we allow it. Don't ever forget that.

  • Rev. Arthur L. Kirkland||

    Do as your betters prescribe, clinger, and you can whine all you wish.

  • TwelveInchPianist||

    "Harvard"

    Harvard, where the Law School has a visiting professor, Catharine MacKinnon, that claims that a law professor representing people accused of crimes constitutes discrimination against female students? Those are our betters? Having her at the law school strikes me as the equivalent of having a flat-earther astrophysicist, no?

  • y81||

    Yes, if Prof. Whittington were not a cowardly hypocrite, he would step up and defend Professor Sullivan openly and publicly. I won't hold my breath.

  • Alpheus W Drinkwater||

    Yes, don't hold your breath. I'm guessing meaningless insults from anonymous internet commenters usually aren't his highest priority.

  • I Callahan||

    Arthur - there are no conservative-controlled college campuses, except maybe Hillsdale. And they put their money where their mouths are by eschewing any federal aid. The only place those examples exist are in your mind. They are figments of your imagination; nothing more.

  • Rev. Arthur L. Kirkland||

    Wheaton. Biola. Ave Maria. Grove City. Regent. Liberty. Dallas. Ozarks. Franciscan. Cedarville. Patrick Henry. Oral Roberts.

    And dozens like them.

    Still wondering why strong schools don't take the Conspirators' advice on emulating lousy schools by hiring more movement conservatives?

  • Pacific||

    The Ben Shapiro Full Employment Order.

  • Kazinski||

    You'd think college administrators could see the threats to their own jobs from not protecting free speech, and I'm not talking about threats from Trump. I'm talking about what happened at University of Missouri, and Evergreen State in Washington. Both institutions had to deal with very painful retrenchments when out of control cadres tried to shut down free speech. Parents aren't going to send their kids to colleges where they don't think they are focusing on their educational mission. But i will conceed that some institutions like UC Berkley are largely immune from that affect.

  • smartmuffin||

    I'm talking about what happened at University of Missouri, and Evergreen State in Washington. Both institutions had to deal with very painful retrenchments when out of control cadres tried to shut down free speech.

    They don't see it this way.

    The standard left-wing view of these incidents is that enrollment dropped because the progressives didn't go far enough. That students are responding to the fact that the university allowed evil racist professors to operate in the open and didn't do enough to punish them.

  • Last of the Shitlords||

    Some armed private security does wonders with melting out of control snowflakes.

    Every stinking hippie should become intimately familiar with the business end of a nightstick

  • Alpheus W Drinkwater||

    More than the usual number of commenters here clearly have not read the original post, which unambiguously endorsed free speech on campus for all. Before trotting out the "Progs suppressing us real Americans" tropes, perhaps read what was actually written.

  • awildseaking||

    Maybe if people followed actual media outlets that report on these issues (I strongly recommend Tim Pool), there might be some statistical studies of these incidents so mainstream audiences could know how prevalent this leftist insanity really is. FIRE already does a decent job with their academic freedom ratings, but with many schools, you just don't know how they will act until someone causes a problem.

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