On today’s homepage, Frederick Hess and Grant Addison have a piece arguing that while state-level legislation is necessary to confront the campus free-speech crisis, such bills are insufficient remedies by themselves and can even be abused by administrators if their application is not carefully monitored. Taking off from the recent passage of a campus free-speech bill in Tennessee, Hess and Addison point out that weak-kneed administrators may refuse to enforce discipline and may apply it unfairly when they do. Hess and Addison conclude that after Tennessee-style free speech bills are passed: “the next challenge is to monitor whether campuses honor these protections, find ways to challenge 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.”
These are important points. It needs to be said, however, that the campus free speech bill recently passed in Tennessee is not, as Hess and Addison claim, chiefly based on the Goldwater proposal. Hess and Addison cite a report from Chronicle of Higher Education which treats the Tennessee bill as one of many “broadly based” on the model legislation I co-authored with Jim Manley and Jonathan Butcher of Arizona’s Goldwater Institute. Yet while the Goldwater proposal may have had some influence on the Tennessee bill, that legislation is in fact quite different overall from the Goldwater model.
In particular, the Tennessee bill lacks critical provisions from the Goldwater model that press administrators to enforce sanctions on students who shout-down visiting speakers, and that set up an oversight system to ensure that such discipline is neither shirked, on the one hand, nor abused and misapplied, on the other.
Of course I agree with Hess and Addison that legislation by itself is only a first step. Even if a bill closely based on the Goldwater model should pass, administrators would have to be monitored, and the broader cultural problems that lay behind the campus free speech crisis would need to be addressed. I merely note that the Goldwater proposal was crafted with these larger concerns in mind. In fact, I pointed out yesterday on the Corner that the Tennessee bill and several others currently being considered lack the Goldwater model’s enforcement and oversight mechanisms, and that this is a problem.
The full Goldwater model includes a provision that mandates suspension for any student twice found responsible for interfering with the expressive rights of others. This is designed to prevent administrators from repeatedly handing out meaningless slaps on the wrist. At the same time, the Goldwater model establishes an oversight system based, not in the administration, but in state university boards of trustees. A trustee committee must submit an annual report on the administrative handling of discipline to the public, the trustees, the Governor, and the legislature.
Since the trustees have the power to replace the university’s leading administrator, and the legislature holds the power of the purse, a negative report could have serious consequences for administrators who shirk or abuse the disciplinary powers set out by the new law.
Trustees will be more inclined to criticize administrators in some states than in others. But in states where trustees whitewash bad administrative decisions, the annual oversight report can serve to focus public criticism of both administrators and trustees. In general, the Goldwater model’s annual report is designed to draw trustees and the public more fully into the oversight process. Of course this vindicates Hess’s and Addison’s point about the need for public to stay watchful lest administrators shirk or abuse their powers. My point is simply that the Goldwater model anticipates this need and includes mechanisms to encourage it. The Tennessee bill cited by Hess and Addison, however, lacks these mechanisms precisely because it is not closely based on the Goldwater proposal.