Can the Feds Do Something to Protect Campus Free Speech? Should They?

That free speech on college campuses is under attack cannot be denied. We find invited speakers being disinvited or shouted down, “bias incident” reporting systems that encourage students to complain when they hear anything they don’t like, and professors who demean students who dare to question their assertions.

In the fairly recent past, most higher education leaders would have admitted that the assault on free speech was bad, but tried to say that it isn’t really much of a problem. But now we find that some actually praise it, such as New York University professor Ulrich Baer, who recently argued in the New York Times, “The idea of freedom of speech does not mean blanket permission to say anything anybody thinks. It means balancing the inherent value of a given view with the obligation to ensure that other members of a given community can participate in discourse as fully recognized members of the community.”

I’m not going to explain what’s wrong with that “speech must be regulated” view here (but if you’re interested, I did so in this Minding the Campus piece). The question at hand is what, if anything, the federal government should do to protect free speech against its many enemies.

In an April 30 Wall Street Journal piece, the well-known civil rights attorney (and co-founder of the Foundation for Individual Rights in Education) Harvey Silverglate made the case that, as his title said, “Trump and Congress Can Help Restore Campus Free Speech.”

Silverglate argues that the Department of Education should first of all rescind the Obama-era “guidance” telling colleges that they must ban all “unwelcome conduct of a sexual nature,” which includes speech that any student might find objectionable. That rule, Silverglate points out, has led to such absurdities as the firing of Louisiana State University professor Teresa Buchanan on the grounds that some of her class discussions included sexually vulgar language.

The Department’s “guidance” was itself misguided, Silverglate points out, since the Supreme Court’s standard for illegal harassment in education (announced in the 1999 case Davis v. Monroe County Board of Education) requires conduct that is “so severe, pervasive, and objectively offensive” as to deprive a student of educational opportunity. Therefore, the Department should make it clear to all schools under its authority that they must not interfere with speech on campus unless it rises to the high standard in Davis. 

Second, Silverglate suggests that Congress should exercise the power of the purse and stop funding to institutions with policies that violate free speech rights. He advocates legislation that “would hold universities to their own professed fundamental principles. While institutions frequently cite the importance of ‘diversity and inclusion,’ in practice they aim at producing students who look different but think alike.”

Colleges and universities certainly ought to be held to “their own professed principles” (that is, free speech and open inquiry) but the question is how.

If the federal government wants to condition receipt of tax money on compliance with the protection of First Amendment rights, it will have to do so through the Department of Education. That prospect worries Preston Cooper, a research analyst at the American Enterprise Institute.

Writing on Forbes several days after Silverglate’s piece was published, Cooper suggests caution before turning such power over to the Department’s regulators. Cooper quotes F.A. Hayek’s observation that “we shall never prevent the abuse of power if we are not prepared to limit power in a way which occasionally may prevent its use for desirable purposes.”

In other words, while it might seem wise to empower the Education Department to do good by threatening to withhold funds from schools that don’t protect free speech rights on campus, we should consider the possibility of that same power being abused. “Higher education has no shortage of problems,” Cooper writes, “but using the top-down threat of withholding federal funds concentrates an enormous amount of power in the hands of the enforcers—in this case, the unelected bureaucrats at the Department of Education.”

If Hayek were still alive, he would undoubtedly say that we shouldn’t just think about what the good federal bureaucrats might do in the present to protect free speech, but also about the harm they might do with that power in the future. Could a pro-speech mandate today become an anti-speech mandate under the next administration?

Cooper raises this hypothetical: What if the Department were at some point to tell colleges that they violate “free speech” if they have a prayer or chapel requirement? Small, church-oriented colleges might decide that it would be better to give in than to fight officious federal bureaucrats who enjoy exercising their power for “progressive” ends.

Lord Acton famously warned about the corrupting nature of power and we should keep that in mind whenever we contemplate giving more power to any governmental agency.

Cooper isn’t arguing that we stand idly by as colleges trample upon free speech, but instead that we rely on means other than the administrative state. We can shame and stop supporting schools that don’t respect free speech and we can sue them when they act in ways that violate the First Amendment or (for private schools) fail to live up to their professed free speech commitments. Cooper argues that it’s less dangerous to use those approaches than to add the protection of free speech to the list of jobs the Education Department has to do.

So which argument is the stronger?

The question comes down to trying to weigh the prospective good that might come from having the government task the Department of Education with the defense of campus free speech against the prospective damage its bureaucrats might do with that authority.

While I agree with Cooper (and Hayek) that it’s dangerous to give government officials power, I’m not convinced that we would actually increase the Education Department’s power and the likelihood of its abuse if we conditioned eligibility for federal funds on respect for free speech on campus.

I say that because Education Department bureaucrats can already abuse authority, and often have. Their “Dear Colleague” letters imposing new legal requirements on schools were abuses of power—not clarifications of existing law, but new law imposed by bureaucratic fiat. They could now find some justification for harassing religious colleges over chapel requirements if they wanted to, as Cooper suggests, or concoct other “guidance” letters that threaten to withhold funds if schools allow the sort of speech that Professor Baer finds objectionable.

The problem, in short, lies in the existence of the Department itself, not in the precise authority Congress chooses to give it.

I’m reminded of Edmund Burke’s famous outburst over the problem of government corruption: “In vain you tell me that Artificial Government is good but that I fall out only with the Abuse. The Thing! The Thing itself is the Abuse!” (See this article by Professor Michael Munger for the reference.) The Thing here is the Department of Education. Congressional tinkering with its authority probably won’t make it much better but it’s hard to see how it could be made any worse.

  • Glen_S_McGhee_FHEAP

    I’m glad you cited Preston Cooper on this; I like his work, and he raises points similar to what I mentioned previously regarding NAS’s proposal for new “free speech” administrators at colleges and universities.

    “Using federal student aid as an enforcement tool gives the Department of Education an inordinate amount of power. The Department can control institutions with the mere threat of withdrawing federal funds. Unlike fines and other sanctions normally imposed by regulators, the loss of federal money is a death sentence for many colleges. Most colleges would close before they could reasonably contest a denial of aid. This extraordinary power must have limits, or else American higher education could find itself at the mercy of a politicized Department of Education.”

    Cooper also points to difficulties with the construct of free speech itself — meaning, how it is defined as happening or not happening, where does this happen, who does the observing, who defines it, etc. This is all very much a case-by-case thing: for example, I see Milo as an entertainer that intentionally offends (what was that foul-mouthed comedian a few years ago? No, I don’t mean Lenny Bruce. Not Lewis Black either, but before Black), but not relevant for “free speech” purposes.