I noted on Tuesday that Wisconsin State Representative Jesse Kremer had introduced state-level campus free speech legislation modeled on the proposal I drew up in collaboration with Jim Manley and Jonathan Butcher of Arizona’s Goldwater Institute. Now a second campus free speech bill has been introduced by Wisconsin State Senator Leah Vukmir. I’m going to comment here on the Vukmir bill and on how it compares with the Goldwater-based bill introduced by Kremer.
The Vukmir bill is a shorter and less comprehensive approach to campus free speech, focused chiefly on disciplining shout-downs. Partisans of the Vukmir bill advertise it as tougher on discipline than the Kremer bill, but that is mistaken. The Kremer bill will be more effective both at preventing shout-downs and at making sure they are disciplined when they do occur. The Vukmir bill also has some troubling provisions that may well run afoul of the First Amendment. That said, I like a couple of Vukmir’s provisions and think they could be harmonized with Kremer’s bill.
On discipline for shout-downs and the like, Vukmir’s bill creates a range of sanctions, while Kremer’s bill leaves it up to the University Board of Regents to devise those sanctions. I doubt the sanctions themselves will differ much, whoever creates them. The real question is how the sanctions will be enforced. Vukmir’s sanctions include things like “a written reprimand” and “disciplinary probation.” So what’s to stop the university from continually putting students on probation or issuing meaningless slaps on the wrist through a written reprimand?
By contrast, Kremer’s bill includes a requirement that a student twice found responsible for interfering with the expressive rights of others must, at minimum, be either suspended for one semester or expelled. This minimum penalty for a second offense is just. If you’ve already been found responsible for silencing others, there’s no good excuse for a second violation. Beyond that, the Kremer bill’s insistence on a substantial mandatory penalty for a second offense ensures that the university cannot effectively look the other way by continually offering meaningless slaps on the wrist (as frequently happens now).
The mandatory penalty for a second offense also has a powerful deterrent effect. This is especially so since Kremer’s bill mandates that students at freshman orientation must be informed of the school’s discipline policy. This way students will know from their first moment at the university that shouting down a visiting speaker will carry serious consequences.
Students already know that administrators generally ignore shout-downs, or let the perpetrators off easy. Kremer’s mandatory suspension for a second offense restores the credible threat of discipline for shout-downs, which should do much to prevent them from happening in the first place.
Kremer’s bill also includes something absent from Vukmir’s: a system of annual oversight that pressures administrators to enforce the official discipline policy. As noted, the problem with shout-downs is less the lack of a discipline policy than the lack of the will to enforce it. Administrators don’t want to rile up students or parents, and they’d rather roll over in the face of disruptive demonstrators than keep their schools on the front pages. But under Kremer’s bill, a committee of the Board of Regents would issue an annual report on the administrative handling of discipline.
If that report is a whitewash, when clear video exists of shout-downs that went unpunished, the Regents will face a public—and legislative—uproar. And a critical report would buttress a case to either replace administrators or cut university funding. Knowing that their handling of discipline is being watched and graded by a committee of the Regents (who hold power over their jobs) in a report delivered to the legislature (which holds power over the university’s purse strings), administrators will think twice before letting disruptive students off the hook.
Kremer’s bill has yet another enforcement mechanism the Vukmir bill lacks: the power to sue. Kremer’s bill creates a cause of action which allows anyone whose expressive rights are violated to sue the university and recover court costs, attorney’s fees, and damages. Now that is something universities pay attention to. Nothing says “teeth” like a lawsuit. This alone makes the Kremer bill the stronger of the two.
The Vukmir bill also contains a couple of provisions that are, at minimum, constitutionally suspect. The Vukmir bill seems to repeat the Kremer’s provision on institutional neutrality, but the wording is very different. The Vukmir bill declares that “university and college campus administrators shall remain neutral on public policy controversies.” While it could be argued that this refers to administrators only in their official capacity, the language comes perilously close to banning individuals from expressing a political point of view. The Kremer bill’s wording on institutional neutrality does no such thing.
Vukmir’s bill also contains a “tough” provision that is dangerously broad and very arguably would end up banning a whole range of completely legitimate protests. This provision reads: “No person may threaten an invited speaker or threaten to organize protests or riots or to incite violence with the purpose to dissuade or intimidate an invited speaker from attending a campus event.” This provision employs a dangerously loose use of “threaten” that goes way beyond the legal definition of a “true threat.” The upshot is that almost any demonstration against a visiting speaker—even one that in no way suppresses or silences that speaker—could potentially be banned. It is highly doubtful that this provision would withstand legal scrutiny.
The Vukmir bill also lacks due process protections for students accused of interfering with the rights of others. That is a serious mistake. Many observers have rightly objected to the absence of due process protections for the students (generally men) hauled up before kangaroo campus courts in sexual harassment and assault hearings. We can hardly demand less than full due process protection for students whose expressive rights are at stake. This is a matter of basic justice and fairness to all, regardless of political perspective.
If there are conservatives out there who foolishly relish the image of leftist campus protesters brought before hearings without proper due process rights, consider this. Vukmir’s bill includes a student complaint procedure that will very likely be abused and turned on conservative students. Leftist protesters will likely cook up frivolous complaints to harass conservatives, and the University of Wisconsin administration, no friend to conservatives, could then bring these accused conservative students before hearings without significant due process rights. That would be a disaster.
In contrast, Kremer’s bill relies on a combination of the Regents Report, the cause of action provision, and the mandatory minimum punishment for second offenses for oversight and enforcement. The Vukmir bill’s arguably unconstitutional provisions, its student-on-student complaint procedure, and its lack of due process protections, in combination, could end up unfairly suppressing the speech of administrators, left-leaning students, and conservative students alike.
With all that said, I like some of the Vukmir bill’s provisions, especially the one that requires the University administration to “make all reasonable efforts” and “make available all reasonable resources to ensure the safety of individuals invited to speak on campuses.” This is a thoughtful approach to the problem of universities using excessive security fees to effectively veto controversial speakers. And the Vukmir bill’s list of sanctions could perfectly well be incorporated into a final bill as well.
When it comes to enforcing those sanctions, however, I believe that Jesse Kremer’s bill is by far the more effective measure.
Stanley Kurtz is a senior fellow at the Ethics and Public Policy Center. He can be reached at comments.kurtz@nationalreview.com