Published February 21, 2017
The first duty of a legislature is to protect the rights of its citizens. Speech at public colleges and universities already falls under the protection of the First Amendment, while most private colleges explicitly promise a high level of free speech rights to prospective applicants (which courts generally take as a contractual pledge). Yet in today’s academy, First Amendment rights, however guaranteed or promised, are regularly ignored and infringed. On its face, then, legislative remedies at the level of the state need to be considered. If a legislator is obligated to defend anything, it is our most basic individual rights.
Equally important, intellectual freedom and free expression are essential prerequisites to the fulfillment of a university’s core functions of the discovery, improvement, transmission, and dissemination of knowledge.
Given all this, and given the fact that the federal government provides tens of billions of dollars in student financial aid and university research grants each year, it is incumbent upon Congress to make the protection of First Amendment rights a prerequisite of its financial assistance to America’s colleges and universities. If this has not been done in the past, it is because the American academy could once be relied upon to safeguard free speech rights on its own. For the past several decades, however, culminating in the free speech crisis of our time, the academy has ceased to be a reliable defender of the First Amendment.
It is true that that, in recent years, the federal government has greatly abused the leverage it holds over American higher education through its financial aid. Yet this abuse often consists in issuing rules or using letters of “guidance” (“Dear Colleague Letters”) that go far beyond the legislative intent of Congress. One remedy for this is for Congress to specify its aims in sufficient detail that administrative agencies will find it difficult to either shirk their enforcement obligations, on the one hand, or to abuse their power, on the other.
Nor can we allow past abuses to prevent Congress from fulfilling its core function of safeguarding the most fundamental individual rights of America’s citizens. Neither is the taxpayer obligated to subsidize, to the tune of billions of dollars, assaults on basic free speech rights and First Amendment freedoms at America’s public or private colleges and universities.
The Higher Education Act (HEA), enacted in 1965 and last reauthorized in 2008, provides the primary framework for the federal government’s involvement in higher education. With HEA due to be reauthorized this year, the National Association of Scholars (NAS) has offered a preliminary draft of The Freedom to Learn Amendments, by which it intends to stimulate competition, reduce unnecessary regulation, and counter rampant politicization in American higher education. Included in the Freedom to Learn Amendments are the NAS’s recommendations for ways to ensure that colleges and universities benefiting from federal aid respect and protect the free speech rights of their students.
The NAS’s preliminary suggestions for amending HEA provide an excellent foundation for any congressional effort to protect campus free speech. I intend to build upon NAS’s ideas here, expanding on some of its recommendations, adding new ones, and suggesting a solution to the delicate but critical problem of how a cutoff of federal funds to institutions that fail to protect free speech would actually work. Like the NAS’s initial foray into this issue, my proposal is preliminary and designed to elicit comments and suggestions for further revision.
To begin with, NAS has helpfully identified a largely forgotten section of HEA in which Congress affirms the importance of protecting “student speech and association rights.” (Title I, Part B, Section 112 of HEA, pp. 22-23) As I read it, this section effectively bars university policies that restrict speech. That is Title I, Section 112 of HEA effectively bars restrictive campus speech codes. (“no student…should, on the basis of participation in protected speech…be subjected to…official sanction,” where “protected speech” is defined as “speech protected under the First and 14th amendments to the Constitution.”)
And while Title I, Section 112 of HEA does not directly call for disciplining students who have interfered with the free-speech rights of others, it does assume that such discipline policies will be enacted, since this section explicitly permits colleges to sanction students who willfully disrupt ”a lecture, class, speech, presentation, or performance.”
Title I, Section 112 of HEA also upholds the traditional ability of private religious colleges, under the First Amendment’s guarantee of religious liberty, to impose certain limits on speech. It does so by affirming that its definition of protected speech shall not “be construed to modify, change, or infringe upon any constitutionally protected religious liberty, freedom, expression, or association.”
Although the provisions in Title I, Section 112 of HEA express only the “sense of Congress,” NAS proposes to give these provisions force by adding enforcement mechanisms to HEA. These mechanisms would work, first of all, by expanding the definition of “protected speech” to include things like “the right of invited speakers to speak and be heard,” and “rigorous and effective defense of free speech against intimidation, threats of violence, actual violence, and reprisals.” NAS would then require a college seeking to qualify for federal student loans under Title IV of HEA to file a pledge with the Department of Education to uphold student speech and association rights as laid out in the expanded definition of protected speech.
NAS would also require colleges receiving federal aid to submit an annual report to the Department of Education detailing any instances in which their pledge to uphold speech and association rights as defined by HEA “has been violated by students or faculty and how the institution has taken steps to punish offenders and better protect the rights of speech and association in the future.”
Finally, NAS would have Congress create an independent commission with the power to investigate how universities are fulfilling their pledges to uphold student speech and association rights. The commission would report annually to Congress and: “list non-feasant and mal-feasant colleges and universities,” any of which may then be denied eligibility for Title IV student aid by majority vote of Congress (with the concurrence of the president).
Building on these excellent ideas, I will suggest a broader set of commitments to be included in the pledge signed by any college or university that wishes to be eligible for federal aid. I will also suggest a mechanism for fund cut-offs (arguably the most complex and politically challenging part of any effort to link federal funding to campus free speech), and will speak to the issue of who decides when a university is in violation, and to the question of religious exemptions as well.
Regarding the pledge, I propose that colleges and universities seeking eligibility for federal student aid under Title IV of HEA should:
First: Agree not to maintain any regulation or policy that prohibits expression that would be permitted by the First Amendment in society at large. (This would effectively ban restrictive “speech codes.”)
Second: Agree that their campus is open to any speaker whom students, student groups, or members of the faculty have invited. (This would prevent most speaker disinvitations.)
Third: Agree to establish, maintain, and utilize a system of sanctions to discipline students, or anyone else under the jurisdiction of the college or university, who interferes with the expressive rights of others. The accused shall be provided with robust due process rights. (Subsequent guidance from the Secretary can lay out parameters.)
Fourth: Agree to inform all students, faculty members, and employees annually of the university policies on free speech and on the discipline of those who interfere with the expressive rights of others (thereby deterring shout-downs).
Fifth: Agree not to impose excessive security fees on campus groups hosting visiting speakers as a means of censoring speech (thereby discouraging the heckler’s veto). (Subsequent guidance from the Secretary of Education can help define “excessive.”)
Sixth: Agree to submit an annual report on steps taken to uphold their speech and association commitments, detailing any instances in which such speech and association rights have been violated by administrative actions or policies, by students, or by faculty, and detailing steps taken to punish intentional disruptions of speech, and to better protect the rights of speech and association in the future. This report shall be made public.
Seventh: Agree to inform all student applicants in the event that the institution is certified by Congress or the Secretary of Education as out of compliance with its obligations under the pledge. (To be discussed further below.)
I would also suggest that several additional provisions be added by amendment to HEA:
First: Instruct the Secretary of Education to create a reporting procedure whereby students, faculty, employees or any member of the public who believes that an institution has violated their protected speech or association rights can report the problem to the Department of Education.
Second: Authorize the Secretary of Education to investigate any college or university that has signed the pledge to see if they are in compliance with their obligations under the pledge.
Third: Authorize the Secretary of Education to certify that a given institution, upon investigation, has fallen out of compliance with its obligations under the pledge, or has returned to compliance.
Fourth: Authorize the Secretary of Education to withhold federal funding from institutions found to be out of compliance with their obligations under the pledge. (The Secretary’s independent authority to withhold funds would be in addition to the mechanism of the congressional commission suggested by NAS.)
Perhaps the thorniest problem facing such a system is the mechanics of an actual funding cut-off. Unlike state aid, which generally goes directly to colleges and universities, federal aid under Title IV of HEA is channeled through grants to individual students. To precipitously cut off aid would disrupt the education of those students and create a bureaucratic and political mess. So the danger is that no congress or administration would ever dare to actually withhold federal aid.
The solution, I believe, is a two-year period of probation prior to an actual funding cut-off, following a declaration by either Congress or the Secretary of Education that a given college or university is out of compliance with its obligations under the pledge. Keep in mind that colleges already bend over backwards to avoid any possibility of a funding cut-off under Title VI of the Civil Rights Act or Title IX of HEA (i.e. their obligations to avoid racial or sexual discrimination). Simply placing a university on probation for being in violation of its obligation to protect free speech would have enormous impact. First, it would represent a significant embarrassment to the institution. Second, the warning of an imminent funding cut-off would have almost any university scrambling to get back into compliance as quickly as possible.
The two-year probationary lead-time would give prospective student applicants ample warning that a given institution may soon become ineligible to receive their federal aid. This would minimize disruption to student planning. At the same time, any student enrolled in an institution prior to a funding cut-off would have their federal aid grandfathered in. The result would be that in the second year of the probation period, applications to the institution in question would plunge (harming the school’s selectivity rating), yet without threatening the financial position of current students. This would be powerful motivation indeed for the institution to get back into compliance. Yet it would all happen well before a single federal dollar had been withheld.
It’s unclear whether federal research grants could be included in a funding cutoff strictly by means of amending HEA. Most federal research dollars are authorized by other laws. But whether federal research grants can be incorporated into this system strictly by an amendment to HEA, or whether other laws would need to be amended as well, ultimately research grants should become a part of this system. I would suggest that they be cut-off only in the second year of probation, giving an institution a full year to get back into compliance prior to any disruption of research.
While there is a danger that universities on probation may be on good behavior for a year, yet quickly revert to suppressing speech after being recertified, the system may not be so easy to game. When visiting speakers are shouted down or disinvited, all of that is very public. Nowadays, incidents are often recorded on video. Campus speech codes are open and public, by definition. And a university’s annual report will be public and open to criticism and refutation. All this will make it difficult for timid public officials to pretend that an institution is upholding its pledge to protect free speech when the opposite is clearly the case.
Finally, while Title I, Section 112 of HEA already includes an exemption for private religious colleges, this exemption should be clearly reiterated and spelled out in even greater detail in the provisions on the pledge, on the Secretary’s powers of investigation and certification, and on the congressional commission.
Through direct and indirect legal mechanisms, the First Amendment and freedom of speech have long applied to the lion’s share of America’s colleges and universities. Similarly, the Higher Education Act has long included language affirming the centrality to colleges and universities of our First Amendment rights. Private secular colleges that wish to exempt themselves from traditional free speech norms are free to reject federal aid. The American taxpayer is under no obligation to subsidize speech codes, speaker disinvitations, or shout-downs. It’s past time that Congress took steps to ensure that taxpayer dollars no long underwrite campus assaults on freedom of speech.