What Does It Take to Really Protect Campus Free Speech?

Policy adoptions are useless without enforcement mechanisms.

I read with interest and trepidation the Martin Center’s March 16 article “Davidson College Affirms Free Speech,” which noted that Davidson had adopted a version of the Chicago Principles as its new speech policy.

My interest came from the recognition that the college had made an abstract commitment to preserving freedom of speech on campus. My trepidation came from the tone of celebration the article embodied—the implication that adopting the new policy would actually protect unpopular speech.

There is an old saying that it is good to learn from experience but better to learn from someone else’s experience. In the hope that people at Davidson will adhere to that aphorism, I offer my experience at Georgetown University.

Free-speech policies without enforcement mechanisms are meaningless.In 2015, the Steering Committee of Georgetown’s Faculty Senate commissioned a committee to revise the university’s speech and expression policy. That committee worked for two years to produce a policy that was acceptable to all parties.

Like Davidson’s, the revised policy was a version of the University of Chicago’s Report of the Committee on Freedom of Expression (Chicago Principles), adapted to Georgetown University’s history and tradition. In the spring of 2017, at a meeting attended by representatives of the Office of Student Affairs, the university counsel, the Faculty Senate, and the Office of Institutional Diversity, Equity & Affirmative Action, the revised policy was approved and sent on to Georgetown’s Board of Trustees, which ratified it.

Georgetown appeared to have made a serious commitment to freedom of speech on campus, and yet …

In 2022, the Foundation for Individual Right and Expression (FIRE) ranked 203 universities on the basis of how hospitable they were to free speech on campus. Georgetown was ranked #200. In 2023, Georgetown received FIRE’s lifetime censorship award. How could this be?

The answer is that policies without enforcement mechanisms are meaningless. The old Soviet Union had an excellent guarantee of freedom of speech in its constitution (Article 50).

Georgetown’s new speech and expression policy was designed to restrain the ability of the university’s administrators to suppress unpopular speech. But who was in charge of enforcing the policy? The university’s administrators. Under these circumstances, how effective would you expect the enforcement of the policy to be?

Consider the incentives of the parties. Deans get no reward for upholding an abstract commitment to freedom of speech in the face of student outcry and protest. Their incentive is to quell dissension as quickly as possible and keep the institution functioning normally. That can usually be done by mollifying the protestors. Standing on principle will almost certainly exacerbate the strife by provoking more protests and generating negative media coverage.

Deans get no reward for upholding an abstract commitment to freedom of speech in the face of student outcry.It will also subject deans to personal attacks and charges that the school is “insensitive” to the plight of minority students or creates an “unsafe learning environment.” In contrast, deans who successfully quiet the disruption often earn praise from the administration.

In 2021, an adjunct law professor was caught on tape expressing her opinion that African-American students made up a disproportionate share of those with the lowest grades in her course and expressing dismay over this. When this recording came to light, the dean of the law school quelled the student protests by summarily firing her for her “abhorrent” conversation and making “reprehensible statements concerning the evaluation of Black students.”

This action earned the praise of the president, who published a university-wide email stating that the dean’s “decisive actions were essential and consistent with the ethos and ideals we strive to sustain at Georgetown.” The dean suffered no blowback for disregarding the speech and expression policy.

Like most colleges and universities, Georgetown has its own bureaucracy devoted to ferreting out and punishing any incident of bias on campus. At Georgetown, this is the Office of Institutional Diversity, Equity & Affirmative Action (IDEAA).

The staff of this office are dedicated to creating a bias-free campus environment that is comfortable for all students regardless of race, sex, ethnicity, and sexual orientation. They are rewarded for effectively investigating and sanctioning behavior that is offensive to members of minority groups.

The staffers are not rewarded for making careful distinctions between reports in which the offense comes from threats or insults directed at individuals because of their race, sex, ethnicity, or sexual orientation and those in which the offense comes from the ideas being expressed. They are subject to criticism and may be penalized for failing to act on an allegation of bias, but they suffer no penalty for pursuing allegations based exclusively on the content of speech.

When Georgetown made its commitment to freedom of speech on campus, it failed to designate anyone to be responsible for seeing that the policy is enforced.

If everyone is responsible for maintaining a university’s commitment to freedom of speech, no one is. The university has an executive vice-president for diversity, equity, and inclusion who is responsible for seeing that the university’s anti-bias policies are vigorously enforced. Each of Georgetown’s schools have executive vice-presidents (deans) who are responsible for maintaining the proper functioning of the school.

There is, however, no executive vice-president responsible for ensuring the school honors its speech and expression policy, which means that there is no one to challenge administrative actions that violate the speech and expression policy. Apparently, at Georgetown, it is everyone’s responsibility to maintain the university’s commitment to protect freedom of speech on campus, which, in practical terms, means that it is no one’s. 

I hope the Davidsonians for Freedom of Thought and Discourse learn from our failure.

Adopting the Chicago Principles is a good move, but you are not done. The March 16 article suggests that you are moving on to make “a concerted effort to diversify ideologically invited external speakers” and to administer “biennial independently conducted confidential surveys of students and faculty to assess the state of free expression, open discourse, and ideological balance on campus.” I don’t think you are there yet. Wait until you have created an effective enforcement method for the new policy.

Perhaps you can get the college to hire an executive vice-president for freedom of speech who is equal in status to the deans and chief diversity officer. If that is too much of a stretch, perhaps you can arrange for the creation of an Initial Review Board composed of people who have expertise in distinguishing protected speech from actionable conduct. Such a body would review allegations that an individual’s verbal conduct violated a university policy and dismiss those based exclusively on the content of protected speech.

Perhaps you can make the policy self-enforcing by adding a provision that states, “The college will summarily dismiss any allegation that an individual or group has violated a college policy if the allegation is based solely on the individual’s or group’s expression of religious, philosophical, literary, artistic, political, or scientific viewpoints.”

Don’t expect administrators to stand on principle when doing so conflicts with their personal incentives.Such a provision would empower anyone being investigated for protected speech to file a grievance against the college and, if it is made a contractual provision of the Faculty Handbook, to file a lawsuit.

Please don’t assume that because the college has made an abstract commitment to freedom of speech on campus, the commitment will be honored when difficult cases arise. University administrators get their jobs by demonstrating their ability to deal with the practical aspects of managing a large institution, not their commitment to abstract principles. Don’t expect them to stand on principle when doing so conflicts with their personal incentives.

My friends at Davidson must understand that it is not sufficient to adopt a good policy. To escape Georgetown’s fate, you must change the institutional incentive structure of the college as well.

John Hasnas is a professor of business at Georgetown’s McDonough School of Business and a professor of law (by courtesy) at Georgetown University Law Center. He is also the executive director of the Georgetown Institute for the Study of Markets and Ethics.