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Speaking Up

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Speaking Up

A new bill offers hope of protecting free-speech rights at American universities. September 22, 2021
Education
The Social Order

This summer, North Carolina congressman Greg Murphy introduced the Campus Free Speech Restoration Act, designed to enhance free expression in American universities. Murphy’s bill defines “expressive activities” to include peaceful assembly, speaking, and listening and protects them from “improperly restrictive” institutional incursions, such as speech codes, bias response teams, and “free speech zones.”

That legislation of this kind might be necessary is a sad commentary on academia. But as observers of American higher education know, college is now a place where free inquiry, free speech, and intellectual growth are imperiled. Surveys show that many professors and students now self-censor for political reasons. A punitive progressivism has become dogma, and vague harassment policies, zealous students, and ideological administrators chill dissent. Laws such as Murphy’s can help, but it’s vital to get the details right.

Public universities, legally subject to the First Amendment, get away with unconstitutional practices when authorities fail to respect and enforce the law. This is because no constitutional provision is self-enforcing. To give it effect, an injured party must sue a school. But after filing suit, that party often endures years of “lawfare”—stonewalling, appeals, trials, re-trials, and remands—that public universities, with taxpayer funds and lawyers at their disposal, greet with a yawn. All too often, individual lawsuits against universities are simply pebbles thrown against the citadel.

Murphy’s bill addresses this problem with two innovations. First, it authorizes the Department of Education to condition Title IV federal funding on First Amendment compliance at public schools. While the bill does not specify how this would be implemented, it could easily appear alongside longstanding requirements in each school’s Program Participation Agreement, which requires that institutions refrain from discriminating based on race and sex. The condition could also be the subject of an independent, annual certificate of compliance filed separately by the school with the Department of Education. The certification would force schools to document their efforts to protect free expression and to record where and when it was threatened—whether in “shout-downs,” intimidation of speakers resulting in rescinded invitations or canceled lectures—and to list measures taken to prevent such events from recurring.

Second, the bill creates a new position in the Education Department to oversee the status of free speech on campus and to enforce the First Amendment there, independent of time-consuming and expensive litigation. This official would investigate credible complaints of First Amendment threats and would be authorized to impose penalties in the event of noncompliance.

(The bill also conditions Title IV funding for private universities on disclosure and enforcement of free-speech policies. This imposition is less demanding since private schools are not bound by the First Amendment.)

While the bill is a good start, practical questions remain. Since the Department of Education’s finding of noncompliance would remain reviewable by a court, does the bill’s new federal review simply impose an extra bureaucratic layer on complainants? Won’t this new Education Department official inevitably follow the policies of the administration in power? And, given that schools often cave soon after a complaint is filed by withdrawing contested policies—only to reintroduce the policies at a later date— how will the law prevent backsliding?

Modifications to the bill could account for some of these concerns. The legislation could further empower the Education Department position to conduct random audits on campuses to ensure that a school’s culture, policies, and enforcement practices are First Amendment–friendly. The new office need not wait passively to receive complaints, but instead, like health and safety agencies, should proactively inspect premises to prevent injury.

The bill could also authorize the official to enjoin the problematic policy or action when a complaint makes a reasonable case of a likely violation. The burden of proof at this early stage would be intentionally low—in favor of the complaint and of free expression. This would help level the “lawfare” playing field, signal the importance of the First Amendment in the academic setting, and recognize the reality that institutions of higher learning no longer deserve the benefit of the doubt on speech issues.

Finally, the bill should require the Department of Education to notify a school’s regents or trustees of any complaint, investigation, or injunction, as well as the associated costs. The board can then communicate with the general assembly to deduct such costs from the school’s annual appropriations, which would, of course, be refunded or re-appropriated should a final judgment exonerate the school.

Taken together, these provisions would ensure that the institution bears the cost of likely constitutional violations—not the individual and not the taxpayers. More could be said about required elements for injunctive relief and about finding the right person to fill this new position. But with time and some tinkering, Murphy’s legislation could be an important step toward rescuing American higher education.

Photo by JHU Sheridan Libraries/Gado/Getty Images

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