The turnabout in federal policy towards higher education has been dramatic. Back on September 7, Secretary of Education Betsy DeVos announced that her department was rescinding the 2011 “Dear Colleague” letter in which the Obama administration’s Office for Civil Rights imposed new standards for the way colleges must deal with allegations of sexual assault and harassment.
Those standards badly undermined the rights of the accused and also emboldened students and even non-students to file harassment charges against anyone on campus for saying or writing things they didn’t like—the absurd case against Northwestern University professor Laura Kipnis, for example. (Here is an excellent piece on that by Harvard law professor Jennie Suk Gersen.)
Then, on September 26, Attorney General Jeff Sessions gave a speech at Georgetown University. In it, he stated that the Department of Justice would be taking a vigorous role in countering the assaults on freedom of speech that have become increasingly common on college campuses. He said to the students, “We hope you will take part in the right of every American: the free, robust, and sometimes contentious exchange of ideas. As you exercise these rights, realize how precious, how rare, and how fragile they are. In most societies throughout history… such rights do not exist.”
However, the right of free speech is increasingly under attack on American college campuses, Sessions continued. He pointed to the case of Kellogg Community College in Michigan, where students were arrested for peacefully advocating liberty and the ideals of the Constitution to passersby. (You can read about the case here.)
“The American university was once the center of academic freedom—a place of robust debate, a forum for the competition of ideas,” Sessions said. “But it is transforming into an echo chamber of political correctness and homogenous thought, a shelter for fragile egos.”
What does Sessions intend to do about that?
He said that the Department of Justice has filed a Statement of Interest in a case involving a student at Georgia Gwinnett College who maintains that his First Amendment rights were violated when the school confined students to a tiny “free speech zone” if they wanted to express themselves. (He wanted to preach his Christian beliefs.)
Furthermore, “students were required to obtain prior authorization from campus officials, to limit their expressive activity to a specified date and time, and to comply with the Student Code of Conduct’s prohibition of speech that ‘disturbs the comfort of persons(s).’” Obviously, Sessions finds the college’s regulation of free speech to be unacceptable.
When the Department of Justice issues a Statement of Interest, it is done to help the court by providing a legal framework to evaluate the issues presented. As the writer of this 2016 article in the Harvard Civil Right – Civil Liberties Law Review states, they are “designed to explain to the court the interests of the United States in litigation between private parties.”
In this case, Uzuegbunam v. Preczewski, the Department states that the plaintiffs’ allegations “have adequately represented violations of their First and Fourteenth Amendment rights” and also that the school’s policies “were not content-neutral, established an impermissible heckler’s veto, and were not narrowly tailored to achieve a compelling governmental interest.”
For the Department of Justice to issue a Statement of Interest in college free speech cases is a signal to both the judge and the defendant that the federal government is watching the proceedings. While private groups that have fought against restrictions on free speech (such as Alliance Defending Freedom and the Foundation for Individual Rights in Education) have a strong record of success, a Statement of Interest from the Justice Department is wind in their sails. College leaders who might think about taking on those or other organizations will think twice if they know the federal government is also a potential adversary.
Sessions announced that the Department of Justice would be issuing statements of interest in other cases as well.
Responding to the Attorney General’s denunciation of schools that allow the “heckler’s veto,” Robert Shibley, executive director of the Foundation for Individual Rights in Education, wrote in a September 28 Wall Street Journal op-ed piece, “It’s been a banner year for hecklers, including violent ones. The University of North Carolina says that it ‘is not willing to risk anyone’s safety’ to allow white nationalist Richard Spencer to speak on campus…. But the idea that free speech is in opposition with safety is nonsensical. You are not safe if you are under threat of physical attack for expressing or listening to political views.”
While some writers on the left say that there is little to no free speech problem on our campuses (this Forbes piece, for example), the evidence is conclusive that the assault on free speech is widespread and increasing. Stanley Kurtz, one of the drafters of the Campus Free Speech Act (which he discussed here), provides a disturbing catalogue of recent incidents where students shouted down or harassed speakers in this National Review article.
Last fall, to cite just one instance Kurtz recounts, University of Minnesota College Republicans painted a mural which declared their support for Trump/Pence and repeated Trump’s slogan “Build the Wall.” Almost immediately, the mural was defaced by students who opposed Trump and who chanted “Hate Speech is not Free Speech.” From there, matters quickly worsened. The College Republican leaders feared for their safety and would not walk across campus alone at night. Worse yet, Kurtz writes, “University administrators began attacking the mural, in effect inciting anger toward the school’s conservative students.”
The president of the university, Eric Kaler spoke out against the vandalism and in favor of free speech. Kurtz continues, “But when Kaler set up a public meeting to discuss the campus climate, 100 chanting protesters stormed the stage and ended the event.”
The University of Minnesota has a bad climate for free speech. So do many other schools, both due to their own policies and because protesters get away with disruption and even violence. The Justice Department’s decision to start weighing in to protect the First Amendment on college campuses is long overdue.
Now, what about the Department of Education? It should follow Justice’s lead and also take an active role in protecting free speech. Now that Secretary DeVos has dealt with the Obama administration’s Title IX overreach, she should think about using the authority of her department to see that colleges and universities subject to federal regulation uphold free speech.
The National Association of Scholars’ proposed “Freedom to Learn Amendments” begin with several ideas the Education Department could implement on its own, such as requiring colleges to submit an annual report on their efforts at ensuring free speech, and detailing instances where those rights were violated and how the school addressed them. Secretary DeVos should issue a “Dear Colleague” letter that provides colleges guidance on their responsibilities regarding freedom of speech based on that NAS proposal.
Under Obama, colleges had to worry about the federal government’s wrath only if they didn’t do their utmost to prosecute every accusation of sexual assault or harassment. Under the Trump administration, federal power apparently will be directed toward a different objective—ensuring that free speech prevails on campus over officious administrators and student mobs.