Do Free Speech and Inclusivity Clash?

At meeting of college lawyers, panelists rue students’ lack of understanding of First Amendment and share strategies for balancing expression and sensitivity.

June 26, 2017
 
Eric Michael Clarke of eClarke Photo
NACUA discussion

CHICAGO -- Greg Lukianoff has spent much of his career making life miserable for college and university lawyers. So some members of the National Association of College and University Attorneys might have been surprised to hear the head of the Foundation for Individual Rights in Education suggest that students -- not campus officials -- are increasingly the people he worries most about in campus free speech debates.

“For most of my career, we were usually running up against administrative overreach” -- campus leaders “doing things that were a bad idea, or were sometimes well intentioned” but still flawed, Lukianoff said during a panel discussion about the tension between free speech and inclusivity on campuses at the association’s annual conference here.

Students, he said, were traditionally “the best constituents for freedom of speech." But that’s no longer the case, with “many more students demanding that speakers be disinvited,” calling for the firing of professors or suspension of fellow students whose speech they deem hurtful, and the like.

And, even more recently, using tactics up to and including violence to shut down speech entirely, which he said in turn is sometimes leading outsiders to threaten violence against protesting students or the professors who defend them, a practice FIRE has condemned.

“Campus threats are not protected speech,” Lukianoff said. "We’re in very quick backlash stage … Things are spiraling in a way that has me very worried for our society.”

Lukianoff and his fellow panelists -- two lawyers, a student affairs administrator, and a law professor -- discussed a range of issues during the 90-minute session, including the role of higher education institutions in modeling the civil exchange of ideas and where the traps are for institutions in balancing free speech and inclusivity on their campuses.

But much of the conversation was spent wrestling with how evolving student expectations are changing the landscape facing college lawyers and other administrators.

The panelists were in general agreement that students are coming to campuses both with less tolerance for differing points of view and less respect for free speech than used to be the case.

Geoffrey Stone, the Edward H. Levi Distinguished Professor of Law at the University of Chicago, said students are much more likely to encounter public hate speech today than they were before, given that talk that used to be relegated to the locker room is now readily found on the internet and cable television.

That free-flowing speech affects not just the students “who are the targets of that hate speech, who feel the power of that, the marginalization, in a pretty dramatic way,” but also other students who “see it as outrageous that friends of mine should have to be subject to something like that … and are becoming very defensive on their behalf,” Stone said.

Today’s students are also both growing up in a technology bubble “that allows you to surround yourselves 24 hours a day” with opinions that match their own, said Lukianoff, and having come through an education system that has given them “shockingly little understanding of the importance of freedom of expression,” said Penny Rue, vice president for campus life at Wake Forest University. “They don’t teach civics as much anymore.”

Traevena Byrd, vice president for legal affairs and human resources and general counsel at Towson University, acknowledged that growing up in an environment where they “put a picture of their lunch” on the internet and “expect a bunch of likes by dinnertime” makes many of today’s students feel that if something is making them uncomfortable, “you should care and should do something about it.”

But she also said she believes minority students, in particular, come by their desire for safe and inclusive environments honestly, having grown up in an era of Ferguson, Mo., and finding themselves in situations where they are made to feel they “don’t belong in this classroom.”

If today’s students are ever likelier to come to campuses with expectations that they will be protected from hurtful speech -- 40 percent of millennials surveyed by the Pew Research Group want the government to prohibit such speech -- are colleges obliged to provide such an environment, and how far should they go?

“Students do come to college expecting to be in environment that supports them,” said Rue. To the extent they “come to college expecting safety, I can guarantee them physical safety. But psychological safety and leaning into learning moments are not always aligned.”

Lukianoff and Stone were unequivocal in arguing that while the law does prohibit forms of speech that cross the line into intimidation or threat, hate speech that does not rise (or sink) to that level is protected speech.

Just because it creates hurt is not enough, Stone said. “Almost all controversial speech harms people, upsets or offends them … The First Amendment does not allow you to restrict speech because it harms them.” (Byrd noted that some speech may not breach the Constitution but may violate a federal law by creating a hostile environment, for example.)

Advice for in the Moment

It's well and good for college officials to wish that students understood the First Amendment more or to be more willing to tolerate dissent -- but if they don't, what should they do about it when students are demanding action or threatening to block a speech?

Don't cite the First Amendment, most agreed. When we do that, "we're seen as part of the problem," said Byrd. "They want us to affirm in an appropriate way that their feelings are something they're entitled to have, and to direct them to processes where they can air their grievances."

Lukianoff agreed. "To say that free speech is important because the First Amendment guarantees it" is a circular argument that isn't likely to be persuasive, he said. "I'm always urging people to talk about it from a philosophical perspective."

Colleges do have an obligation to try to remediate the civics deficit that students may have emerged from high school with, Rue and Stone said.

Stone said that when he talks to students who favor disrupting speeches, "who endorse the whole concept of the heckler's veto," he tries to remind them that free speech is most important to the least powerful in society. "If you had allowed Southern towns to shut down civil rights protests because white people threatened violence … that would have crippled the civil rights movement," he said. "It's a reminder of how fragile free speech is, and how essential to the civil rights, women's rights, gay rights movements."

The panelists generally agreed that many constituents on campuses have a role to play in building understanding of the importance of free speech. While many colleges try to address the issues in orientation or with speakers in residence halls, said Rue of Wake Forest, the topic won't be addressed in sufficient depth if faculty members don't find ways to build it into the curriculum. "This belongs in the classroom," she said. (Lukianoff and Stone said they weren't sure professors could be counted on to be students' teachers on this matter: A surprising number of faculty members, said Stone, "think hate speech shouldn't be allowed on campuses.")

Ultimately, colleges and universities are likeliest to succeed in helping their students understand the importance of free speech by modeling it, the panelists agreed.

Stone discussed how the University of Chicago drafted its 2013 statement that argued for protecting free speech even if it "promotes or expresses ideas that are offensive, even loathsome." He said he frequently reminds students that attention to controversial speakers helps them sell books and get more campus invitations, and that "the best thing they could do if they want to undermine the speaker is to not go, ignore it."

Rue advised her colleagues to consider following the approach taken by Texas A&M University in offering alternative programming when the white nationalist Richard Spencer spoke there last November. "More speech is one of our best friends," she said.

Added Lukianoff, "Universities are uniquely capable of fostering discussion along lines of difference. I'd like them to do a better job of it."

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