Campus Double Standards Mean Free-Speech Laws Are Just a Start

(Illustration: Robertzsombori/Dreamstime)
Could college free-speech laws be weaponized to suppress free speech?

In May, Tennessee enacted Senate Bill 723, the Campus Free Speech Protection Act. The law is based on model legislation drafted by the Goldwater Institute and has been hailed as the nation’s “most comprehensive” protection for campus speech by FIRE’s Robert Shibley. Similar legislation has been proposed in statehouses across the nation. The bill promises to end overbroad speech codes, ludicrously named “free-speech zones,” and other assaults on the First Amendment. The statute is an important victory, yet lawmakers and like-minded allies need to recognize that it is only a start. To see why, it’s useful to remember the hypocritical and selective manner in which college officials wield their existing policies.

Case in point: This month, Paul Griffiths, a professor of Catholic theology at Duke Divinity School, resigned after facing backlash and formal punishment for criticizing university-sponsored racial-sensitivity training. In response to a faculty-wide e-mail “strongly urging” participation in the two-day “Racial Equity Institute,” Griffiths decried such events as “anti-intellectual” and wrote to his colleagues:

I exhort you not to attend this training. . . . It’ll be, I predict with confidence, intellectually flaccid: There’ll be bromides, clichés, and amen-corner rah-rahs in plenty. When (if) it gets beyond that, its illiberal roots and totalitarian tendencies will show.

The divinity school’s dean, Elaine Heath, deemed Griffiths’s statement “inappropriate” and implied that his response had been hatefully motivated, declaring, “The use of mass emails to express racism, sexism, and other forms of bigotry is offensive and unacceptable.” After Griffiths refused to meet with her unless a trusted colleague could witness their conversation, Heath barred him from faculty meetings and promised that he would face “further consequences.” Meanwhile, the professor who issued the initial invitation filed an official complaint of harassment against Griffiths for “the use of racist and/or sexist speech in such a way as to constitute a hostile workplace.” Griffiths ultimately felt compelled to resign from the university.

Griffiths’s tale presents a remarkably different picture from the way administrators addressed concerns about faculty bigotry and harassment a decade ago, when three white members of Duke’s men’s lacrosse team were falsely accused of raping an African-American stripper. In that instance, less than a week after allegations became public, Duke professor Houston Baker penned an open letter demanding the immediate expulsion of the entire lacrosse team – not just the three players who were accused (and ultimately cleared). There was also the infamous “Group of 88” ad, in which 88 Duke professors issued a public statement that ran in the school newspaper. Entitled “What Does a Social Disaster Sound Like?,” the ad was paid for by the university’s African-American Studies program and claimed to be endorsed by three academic departments and 13 academic programs (although none of the departments voted on endorsement). The professors declared that “the disaster” represented by these (ultimately exonerated) students would not “end with what the police say or the court decides.” At no point, not even after the accusations were proven to be a fabrication, did Duke administrators take any action against these faculty members for violating the campus’s commitment to combating intolerance and promoting a safe learning environment.

More familiar to most readers will be the contretemps that played out at Middlebury College earlier this spring, when our colleague Charles Murray was invited to speak. There, a violent crowd prevented Murray from delivering his address and then assaulted him and his hosts, ultimately hospitalizing a Middlebury professor. Forty-six days after the fact, Middlebury finally announced that its investigation had identified “more than 70 individuals it believes may be subject to disciplinary procedures.”

It all sounds promising enough — but what did the discipline actually amount to? Middlebury’s student newspaper reported that most students were given an especially modest form of “probation” in which they “have a letter placed in their file that will be removed at the end of the semester.” Since Middlebury’s spring semester ended on May 15, all those students had to do was behave for a few weeks and the whole thing went away. Meanwhile, 19 students received an additional two semesters of probation. That was it. The college acknowledged that not a single student was suspended, kicked off campus, or otherwise visited with any meaningful consequences.

The college acknowledged that not a single student was suspended, kicked off campus, or otherwise visited with any meaningful consequences.

In the moments before Murray spoke, video captured Bill Burger, a Middlebury official, jovially playing the part of stern administrator. To student cheers, Burger announced, “You’re going to love this next part” before reading a perfunctory statement about Middlebury’s rules on audience conduct. Burger closes by informing the students that continued disruption “may result in college discipline, up to and including suspension” — and is met with whoops of approval from the students. As Peter Wood, president of the National Association of Scholars, pointed out in The Federalist, “Burger’s lines were excerpted from Middlebury’s official statement on ‘Demonstrations and Protests,’ but curiously omitted a few key points including this: ‘Disruption may also result in arrest and criminal charges such as disorderly conduct or trespass.’” In short, Middlebury officials felt no obligation to take their own norms and policies seriously, or to mete out the appropriate consequences to those who violated them.

Some of the most glaring instances of institutional hypocrisy have played out in the University of California system, which encourages students to anonymously report any observed behavior that might include “expressions of bias” or “hate speech,” or create a “hostile climate.” As Eugene Volokh, a UCLA law professor and influential blogger, chronicled in the Washington Post, UC administrators have taught that actions that can create a hostile climate on campus include such statements as “America is the land of opportunity” and “I believe that the most qualified person should get the job.”

Despite the system’s commitment to creating a welcoming environment for “all,” no disciplinary action has yet been taken against student protesters who shouted down Manhattan Institute scholar Heather Mac Donald during her recent visit to campus. While shouting “Bulls**t! Bulls**t!” at a guest speaker may not be an “expression of bias,” it certainly violated UCLA’s “Principles of Community” and “True Bruin Respect” civility policy — and would seem to create a “hostile climate.” Stephen Bainbridge, another UCLA law professor, pointed out the hypocrisy of the whole situation on his blog (with copious links providing examples):

If the shoe had been on the other foot, and a conservative mob had shut down a progressive speaker, there would have been crying sessions, CrossCheck Live discussions, official campus statements of support, creation of a hate-speech database, and probably police intervention.

Bainbridge puts his finger on the crux of the matter, illustrating why Tennessee’s necessary and important Campus Free Speech Protection Act is only a start. Policies securing free speech need to be enforced, and they need to be enforced in a serious and evenhanded manner. Unfortunately, today’s supine administrators have given no indication that they are up to that task – yet they are the ones charged by states with breathing life into these new directives. Worse, the record gives reason to fear that campus officials may find ways to apply these new protections in troubling ways that subvert their intent. That means that the next challenge is to monitor whether campuses honor these protections, find ways to change the culture and blind spots of university leaders, and ask what more might be done to ensure that campuses are bastions of free inquiry and not hothouses for ideological thugs.

— Frederick M. Hess is the director of education-policy studies at the American Enterprise Institute. Grant Addison is a research assistant at AEI.


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