This commentary was originally featured in Forbes on February 27, 2018.
Over the past few years, a glut of news accounts has exposed serious restrictions on free speech and debate on American campuses. University speech codes, restrictive “free-speech zones,” commencement speaker “dis-invitations,” and campus shout-downs of invited speakers (the unconstitutional “heckler’s veto”) threaten to undermine our schools’ defining mission: the free, nonpartisan quest for truth.
There is no more pressing issue in higher education today. The effect of campus intolerance and censorship on students is explained in the saying, “The philosophy taught in the classroom in this generation will be the philosophy practiced in the legislature in the next.” If college graduates go on to practice the intolerance they are too often taught today, self-government is doomed.
Aristotle, in The Politics, offers his famous formulation that we human beings are by nature “political animals.” By this he means that an aspect of human nature, our “political capacity,” requires for its completion or perfection our employing logos(logos can mean both “reason” and “speech”) for the purpose of discovering and communicating to our fellow citizens what we deem to be advantageous, just, and good for our political community. Needless to say, such discovery and communication cannot take place absent the freedom to speak and debate. Such absence weakens society and the individual alike.
If our students are deprived of the growth opportunities provided by encountering and debating ideas with which they disagree, they will come to lack the qualities essential to informed, effective citizenship. The philosopher Francis Bacon clarifies this for us when he lists what is required for a genuine education: reading, writing, and debate. He writes that reading “Reading maketh a full man; conference a ready man; and writing an exact man.” In other words, education seeks to make our minds “full” or broad through reading; “exact” or precise in our reasoning, through writing; and “ready,” that is, prepared, through “conference,” or debate. These qualities define not only good learners but good citizens. Democracy depends on a citizenry so endowed.
Recognizing the dependence of democracy on education, U.S. Supreme Court doctrine, spanning over a number of decades, has ruled that the First Amendment’s protections for “the community at large” also apply with equal force to public colleges and universities.
However, as I reported here, the freedom to speak and inquire is too often violated by universities themselves. According to the Foundation for Individual Rights in Education (FIRE), nearly one-third of colleges and universities surveyed “maintain speech codes that clearly and substantially restrict freedom of speech. Moreover, the majority of schools surveyed (58.6 percent) were discovered to have official speech codes on their books that “are vaguely worded in a way that could too easily be used to suppress protected speech, and are unconstitutional at public universities.”
Duly alarmed over the rising intolerance sweeping across campuses nationwide, the University of Chicago released its “Report on Free Expression,” which has come to be called the “The Chicago Statement.” In it, the University of Chicago gently but powerfully rebukes its free-speech-negligent peers, arguing that the school’s “fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.” It, therefore, forbids university members from “obstruct[ing] or otherwise interfer[ing]” with the freedom of others “to express views they reject or even loathe.” It concludes with a pledge to protect free debate and deliberation “when others attempt to restrict it.”
The Chicago Statement has been adopted by the administrations or faculty bodies of 34 universities to date, among them, Columbia, Princeton, Johns Hopkins, Georgetown, Purdue, Michigan State, The University of Missouri System, and LSU.
This is encouraging news. However, according to the latest data from the U.S. Department of Education’s National Center for Education Statistics, there are 691 public, four-year, Title-IV-eligible colleges and 934 public two-year, Title-IV-eligible colleges, or 1,625 in all. Subtract 35 from 1,625, and this leaves 1,590 public institutions that have yet officially to affirm the conditions required to fulfill their teaching-and-learning mission.
How can these schools be encouraged to become signatories to the Chicago Statement or to craft free-speech defenses of their own? There are five ways: (1) Each school’s board of trustees (or “regents”) can adopt the Statement or a likeminded substitute, in the manner done by the University of Wisconsin System Regents, which not only adopted the Goldwater Institute’s model proposal on campus free speech, but also strengthened its discipline provisions for those who “shout down” invited speakers. (2) State legislatures can pass legislation requiring that their state schools either adopt the Chicago Statement or craft their own like-minded policy. This was done recently by the North Carolina legislature, which also adopted a version of the Goldwater Institute’s model proposal. (3) The Secretary of the U.S. Department of Education, Betsy DeVos, could issue a “Dear Colleague” letter to all Title-IV-eligible schools, mandating that these schools either adopt the Chicago Statement or craft an acceptable substitute as a condition of future receipt of Title IV funding. (4) The president could issue an Executive Order to this effect. (5) Finally, the U.S. Congress could pass legislation to this effect.
Of the five options, the simplest, quickest, and most direct would be for boards of trustees, working with senior administrators, to follow the example of not only University of Wisconsin but also the University of Denver and, most recently, the University of Nebraska.
Here in Texas, not one school has signed the Chicago Statement or crafted a substitute. Moreover, Texas houses five schools with FIRE’s worst rating for free speech (“Red Light”) and 11 schools with its second-worst rating (“Yellow Light”). Given that trustees and senior administrators at too many colleges have been shown to acquiesce, at the least, in deprivations of the free speech rights of students and faculty, it is possible that action by state legislatures will be necessary to get some schools to enforce the First Amendment.
To this end, in 2017, the Texas Senate passed a version of the Goldwater Institute’s model bill (along strict party lines). The bill failed in the House. Free-speech defenders have signaled that they are not going away, and have indicated plans to advance legislation requiring all Texas public colleges and universities to adopt either the Chicago Statement, the Goldwater Institute model proposal, or a likeminded substitute of their own crafting. Were Texas, the country’s second most populous state, to succeed in requiring any of these measures, the ripple effects on the rest of the country could be substantial.
But if you cannot wait, the quickest route to reform would consist in action by either U.S. Department of Education Secretary DeVos or President Trump. Through its “Dear Colleague” letters, beginning in 2011, the Obama Department of Education’s Office of Civil Rights transformed campus sexual harassment policy across the country. Its justification for this sweeping diktat was the need to clarify and enforce the provisions of Title IX.
In a like manner, Secretary DeVos could justify her mandate through citing the Department’s responsibility to ensure that the U.S. Constitution (in this case, the First Amendment) is enforced on Title-IV-receiving, public college and university campuses nationwide.
President Trump, through an Executive Order, could well do the same. During the 2016 campaign, the president pledged to repeal two government regulations for every new one adopted. This took the form of an Executive Order in January 2017. In fact, during the first six months of his administration, 16 regulations were repealed for every new one adopted. However, if he and Secretary DeVos agree with the Chicago Statement and the Goldwater Institute that restoring campus free speech is the most pressing issue facing higher education today, he might seek to accomplish reform through an Executive Order.
Finally, the U.S. Congress could act to restore campus free speech through its reauthorizing power over the Higher Education Act of 1965. Congressional action is the most democratic way of accomplishing the goal. It is also the most difficult.
As seen most recently in the failure to pass the thoughtfully crafted S.649, the Higher Education Reform and Opportunity Act of 2015, known as the HERO Act, congressional reform of higher education appears to be the least viable of the five options available.
However, the House of Representatives is currently considering H.R. 4508 “Promoting Real Opportunity, Success, and Prosperity through Education Reform Act,” or the “PROSPER Act.” This legislation provides, among other things, protection of free speech on America’s campuses.
Even if Congress should fail again to reform higher education, a concerted effort in its halls could go some distance toward convincing some colleges and universities to launch a preemptive strike by adopting the Chicago Statement, Goldwater proposal, or a substitute on their own before Congress acts.
How—and whether—this roadmap to freedom’s restoration will be followed remains unknown. What we do know is this: If free speech and debate die on our campuses, they will come in time to die in the public square.