Free Expression and Government Overreach

Colleges and universities must have the flexibility to deal with matters of conduct without the government looking over their shoulders, argues Sigal Ben-Porath.

October 15, 2019
 
 
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The federal government has shown a growing interest in campus speech, taking steps to manage administrative and curricular aspects of the work campuses do. Those mounting efforts to regulate speech at colleges and universities are a threat to academic freedom, and it is time for higher education to push back.

The U.S. Department of Justice, for example, filed a statement of interest last year, backing a lawsuit against the use of bias response team by the University of Michigan. The department agreed with the plaintiffs, Speech First, that the university’s rules probably inhibited free speech.

A federal appeals court also ruled last month that by operating a bias response team, the university might be undermining open expression. In a 2-to-1 decision, the U.S. Court of Appeals for the Sixth Circuit determined that the powers of the bias response team -- an increasingly common tool used by colleges and universities to address concerns about prejudiced and harassing speech -- “objectively chill speech.”

In my work on campus free speech, I have raised concerned about bias response teams. Such teams are basically administrative committees that can respond to concerns about bias through voluntary discussions with the parties involved -- and referrals to others if they determine that the conduct in question was against the law or university policy. Administrators can use them to chill speech in ways that are unjustified, and thus create an environment on their campus that’s not conducive to open inquiry and effective teaching. That can happen if students and professors constantly have to worry that they might be penalized for their words or ideas.

But the court overreaches in its conclusions, given that no evidence suggests that these voluntary processes are, in fact, chilling speech. The price to speech seems to be low or nonexistent, whereas the gain to the conversation on campuses can be significant, in that more students and faculty members will feel confident in participating and have a way to raise concerns when bias and prejudice limit such participation.

Even more concerning is the Justice Department’s interest in the case. Colleges and universities must have the flexibility to deal with matters of conduct without the government looking over their shoulders.

To learn well, students must be exposed to a diverse array of perspectives, and they must do so over time and within a context that supports the expression of dissenting views. The protection of open expression is key to the work that colleges and universities do. So is the protection of a real opportunity for each member of the learning community to try out their views out loud, to consider different perspectives and to share and receive criticism.

Bias response teams can help in the maintenance of a constructive learning environment, depending on how they function. If they are open to students in raising concerns and are built to encourage and mediate a dialogue about those concerns rather than serve as a punitive mechanism, they can contribute to an open atmosphere of research and teaching. The needs of different campuses will be different in this regard, and we will surely make mistakes in the process of establishing them where we choose to do so. But, ultimately, they can serve an important purpose.

Meanwhile, in a similar vein as the Justice Department’s filing, the U.S. Department of Education recently accused the Duke-UNC Consortium for Middle East Studies of an alleged “lack of balance” in its programming, suggesting that it is treating Islam favorably compared to religious minority groups in the Middle East. The Education Department asserted that the conferences and activities the consortium hosts have failed to promote U.S. national security and economic stability -- key goals of Title IV, which helps fund the program.

Title IV programs are good contexts for learning about diverse perspectives, languages and cultures. The government’s attempt to regulate the content so that it fits with an ideological vision represents a breach of the needed barrier between regulators and experts. That barrier has been breached before, of course, notably by legislators in Wisconsin and in other states that have looked into syllabi and criticized professors for the contents of their classes. (The University of Wisconsin Board of Regents last week also continued its regrettable and possibly unconstitutional march toward limiting student protest in the name of protecting free speech.) 

Such regulatory intrusions by different arms of the federal government, along with recent legislation in various states that curtail student protests and forbid the expression of specific political views, should raise alarms in the higher education sector. Under the guise of protecting speech and defending viewpoint diversity, the government is promoting a political ideology -- an effort that people of all political stripes who are committed to academic freedom should reject. Colleges and universities are institutions where research and teaching take place, both of which, in different ways, are based on shared norms and practices that should not be subject to extensive regulatory tinkering.

Along with the Department of Justice renewal of the investigation against Rutgers University for discrimination against Jewish students, a pattern emerges: one that undermines the autonomy and authority of institutions of higher learning and replaces them with a bureaucratic effort to promote specific views.

Free speech, a necessary condition for learning and expanding knowledge, is hampered when politicians police colleges and universities. Of course, higher education institutions sometimes get things wrong -- including in the structure or language of policies related to bias response teams, or with specific programming or syllabus decisions. But even then, legislative limitations and threats to cut funding unless ideological obedience is ensured are the wrong way to go.

Bio

Sigal Ben-Porath is professor of education, with appointments in political science and philosophy, at the University of Pennsylvania. She is the author of Free Speech on Campus (Penn Press 2017).

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