Magazine | October 16, 2017, Issue

Congress and Campus

Students and faculty need federal free-speech protection

At colleges across America, student protesters are intimidating conservatives who dare to attempt to speak. And at Reed College, in Portland, Ore., the radical Left has even turned on its own progressive brothers and sisters. Protesters have occupied classrooms, harassed teachers, and interrupted instruction. One particular target of radical fury is a self-described “queer,” “mixed-race” professor named Lucía Martínez Valdivia, whom protesters call a “race traitor” for failing to oppose a humanities syllabus that was allegedly too white and too male. Before a planned lecture on Sappho, Valdivia pleaded with protesters to treat her with respect, claiming that she was suffering from post-traumatic-stress disorder. They berated her anyway, reducing her to tears.

Reed is one of the most liberal colleges in America, a West Coast version of Oberlin. But the weed of grassroots, student-led intimidation and censorship can be found at colleges of all stripes, as the administration-imposed censorship of the speech-code era in the 1990s gives way to something even worse — a rerun of the 1960s, in which radical students impose mob rule.

The list of incidents at newly dangerous colleges is long and growing: Student rioters at Evergreen State College, Charles Murray’s ordeal at Middlebury, Heather Mac Donald at Claremont McKenna, Ben Shapiro at Cal State–L.A. and the University of Wisconsin, and Milo Yiannopoulos and Ann Coulter at Berkeley, where city and college police, at the university’s behest, have operated under a functional “stand down” order and watched as thugs and criminals have shut down discourse.

Through it all, timid administrators often encourage students’ belief that distasteful speech can be a source of spiritual and psychic harm. Before Shapiro’s appearance at Berkeley this September, the provost promised his fragile students that counseling would be available if needed and then declared, with no evident irony, that “no one should be made to feel threatened or harassed simply because of who they are or for what they believe.”

But attacks on free speech aren’t limited to violence or threats of violence. Despite years of successful litigation, too many campuses still impose speech codes, and administrators often persist in openly applying double standards to conservative and liberal speech. Conservative groups seeking to invite conservative speakers often face prohibitive “security fees” and “scheduling challenges” that liberal groups do not, and the problem is getting worse. The conservative Young America’s Foundation reports that since the election of Donald Trump, 46 percent of its campus events have been disrupted, up from 15 percent the year before. Disruptions include student protests, administrative delays, and sometimes university cancellations.

As if the combination of bottom-up (student-led) and top-down (administrative) censorship weren’t bad enough, dissenting students now confront a “name and shame” culture in which radicals try to use peer and economic pressure to enforce conformity. Speak your mind, and you risk losing friendships or possibly job prospects. Students face isolation and peer persecution. Aspiring faculty members — especially socially conservative ones — encounter hostile hiring committees. The social conservative in the humanities or social sciences is a vanishing breed. In many departments, to the extent that there exists any meaningful intellectual diversity, it comes from socially liberal libertarians. In short, at many campuses, speech carries profound risks at every turn.

Ironically, this multi-pronged attack on the marketplace of ideas comes at a time when First Amendment jurisprudence — overall and as it applies to universities — is the most protective of speech it’s been in decades, or perhaps ever. Students who challenge university censorship in court almost always win, and no university speech code has ever been upheld on the merits. Court cases have forced universities to rewrite policies, promote conservative faculty, and fund conservative organizations. Yet free speech on campus is imperiled as never before. Why?

The answer is a combination of conviction and incentives. The left-wing ideological monoculture on campus has created a world where, predictably, radicals thrive. The “law of group polarization” has done its pernicious work. As Cass Sunstein wrote in a 1999 Harvard Law Review article, “in a striking empirical regularity, deliberation tends to move groups, and the individuals who compose them, toward a more extreme point in the direction indicated by their own predeliberation judgments.”

Or, to put it another way, when people of like mind gather, their views tend to grow more extreme. So the lack of true intellectual diversity on campus means that universities are continually further radicalizing. For example, consider the progression of the argument against free speech. Conservative speech used to be “discriminatory.” Then it was “dehumanizing.” Now, to some academics, it’s “violence.”

This radicalization decisively adjusts campus incentives. Many universities now see greater risk in free speech than in censorship. Open the marketplace of ideas and you risk faculty revolts, student unrest, and negative attention in the press. Free speech can make an administrator’s life hell. How many people want to live an academic and personal nightmare for the sake of protecting speech that many liberal administrators find loathsome and repugnant? As one administrator told me at an academic conference, “I’ll do what I want until a court tells me to change.”

Even worse, the law itself is fundamentally flawed. Yes, federal statutes grant students the right to sue to protect their First Amendment rights, but they can almost never collect meaningful damages. They’ll obtain injunctions and attorneys’-fee awards, but courts have long held that the value of lost speech is virtually impossible to quantify. Cases can drag on for years, and even if universities ultimately lose, the resulting financial penalty is so small that it’s a rounding error in the campus budget. A university has a greater financial incentive to keep its sidewalks clear of snow than it does to protect the fundamental liberties in the Bill of Rights.

It’s time for this to change. Congress and state legislators cannot constitutionally purge radicals from public and federally funded private universities (and should not try), but they can decisively adjust both the law and, crucially, the incentives to protect free speech. State-law proposals, such as the Goldwater Institute’s model free-speech law, not only mandate that universities protect speech, they also mandate that universities impose punishments when students, administrators, or faculty violate the First Amendment. This means that student protesters would face punishment for shouting down speakers. This means that administrators who refuse to grant conservative speakers equal access could face consequences for their careers.

While such laws aren’t without risks (it’s easy to imagine university radicals abusing the student-misconduct provisions to punish conservative speech), it’s time to go further. It’s time for reform at the federal level. Congress should pass a law holding that if a court of final jurisdiction finds that a public university has violated the First Amendment rights of a student or faculty member, the university will pay liquidated damages to the plaintiff in the amount of no less than $5 million. If a university is a repeat offender at any point in the five years following, it will also forfeit 25 percent of its federal funding in the current fiscal year. Offend a third time in the same span, and the university will forfeit 100 percent of its federal funding in that fiscal year. Why should taxpayers fund public universities that can’t fulfill their most basic obligation, to comply with the Constitution and protect our most essential liberties?

A congressional free-speech act wouldn’t immediately change hearts and minds — nor would it eliminate the cultural threat to free speech — but colleges would respond decisively, as they always do when federal funds are at stake. Order police to stand down and let rioters run amok? Lose your funding. Draft and enforce expansive campus policies that prohibit speech the Constitution protects? Lose your funding. Impose double standards on conservatives and liberals, or (as at places such as Evergreen) on the Left and the far left? Lose your funding.

The question is whether liberty-loving legislators have the conviction to overpower radical campus censors. A few states have acted, but so far Congress has been silent. It hasn’t always been so timid. Federal anti-discrimination laws, such as Title IX and Title VI, have helped remake American campuses by providing massive financial incentives to eliminate sex and race discrimination. A federal free-speech law could have a comparable impact, and passing statutes that protect constitutional values is a core congressional role.

As images of violent protests fill television and Twitter, campus free speech is one of those rare issues that not only unite a fractious Republican party but also concern a number of thoughtful and alarmed liberals. The coalition is there, the timing is right, and the stakes are high. The Supreme Court has held that the university is a “traditional sphere of free expression” that is “fundamental to the functioning of society.” It’s even said that closing off the marketplace of ideas could cause our culture to “stagnate and die.” There is no need to court cultural disaster. There exists a way to protect free speech on campus. Do we possess the will?

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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