Published May 25, 2017
The disgraceful failure of Middlebury College to seriously sanction the students who shouted down Charles Murray has green-lighted mob violence on America’s college campuses. The only realistic hope of countering this problem now lies in bills currently winding their way through legislatures in several states. While various campus free speech bills are on offer, only legislation based on the proposal I co-authored with the Jim Manley and Jonathan Butcher of Arizona’s Goldwater Institute systematically addresses the need to discipline students who shout-down visiting speakers.
Yesterday, by a margin of 66 to 26, the Louisiana House passed a campus free speech bill closely based on the Goldwater proposal. Republicans enjoy a 61 to 41 margin in the Louisiana House, with 3 independents. The bill was supported by 52 Republicans, 12 Democrats, and 2 Independents, with 13 legislators absent.
The Louisiana bill, like the Goldwater proposal it is modeled on, instructs the state university system to develop a range of disciplinary sanctions for students who interfere with the expressive rights of others. Students are to be informed of those sanctions during freshman orientation. Also, a committee created by the state university system trustees is to submit an annual review of the administrative handling of free-speech-related student discipline to the public, the trustees, the Governor and the legislature.
The trustees hold the power to fire the system’s leading administrator while the legislature holds the power of the purse. Since a bad report would constitute reason for action by either trustees or the legislature against the university, the oversight system is meant to act as a check on the administrative tendency to let shout-downs pass without punishment.
Crucially, the Louisiana bill, like the Goldwater proposal it is modeled on, includes the following provision: “any student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year or expelled.” This provision is expressly designed to prevent administrators from handing out meaningless Middlebury-style slaps on the wrist ad infinitum.
Invariably, in states considering legislation based on the Goldwater model, the provision mandating suspension for a second offense has occasioned the most comment and opposition, generally from state university systems and from Democrats. (Although note that a substantial number of Democrats voted for the Louisiana bill.) This is unsurprising, since universities desperately want to avoid handing out serious discipline to students in shout-downs. Administrators are afraid to anger students or their parents, and see caving to demonstrators as the best way to get their schools off the front pages.
While the Goldwater-based Louisiana bill does mandate discipline, it also takes the rights of students accused in shout-down incidents very seriously. The Goldwater proposal includes very strong protections for the due process rights of the accused—considerably stronger than the law requires, and far stronger than students are generally accorded in disciplinary proceedings under Title IX sexual assault cases. The annual report by the committee of trustees also serves as a check, not only on administrative weakness but on administrative unfairness to students accused in shout-downs. So while the Goldwater proposal is the only one that provides for disciplining shout-downs, it also includes critically important safeguards against abuse.
Despite this, I expect that some legislatures will remove the mandatory minimum punishment for a second offense provision under pressure from universities that don’t want to be forced to discipline shout-downs in any serious way. Even without that provision, bills based on the Goldwater proposal would still do a great deal to encourage discipline for shout-downs. Nonetheless, the public needs to know that only the full Goldwater proposal, including the critical provision mandating suspension for a second instance of interfering with the expressive rights of others, serves as a maximally effective counterweight to the kind of administrative malfeasance we’ve seen at Middlebury.
This means that we need to be more attentive to the substance of the many campus free speech bills now under consideration by state legislatures. California, for example, is currently considering two campus free speech bills. One would eliminate “free speech zones,” while the other, sponsored by Assemblywoman Melissa Melendez (R-Lake Elsinore), is based on the Goldwater proposal. Melendez’s bill would not only eliminate campus “free speech zones” but would discipline shout-downs as well. The Los Angeles Times article on the two bills clearly tilts toward the less comprehensive bill focused only on free speech zones. Yet that bill would do nothing to prevent shout-downs like the ones Heather MacDonald faced at UCLA and Claremont. In fact, one of the remarkable features of the Melendez bill is that it goes beyond the Goldwater proposal and uses a threatened cut-off of state aid to include private as well as public colleges and universities in its purview. That really would have an impact on both UCLA (public) and Claremont (private).
A campus free speech bill recently passed in Tennessee has rightly received national attention. It’s an excellent bill and a major step forward. That said, while the Tennessee bill clearly prohibits speaker shout-downs, it does nothing to actually enforce that prohibition. Only bills based on the Goldwater model firmly, fairly, and systematically address the issue of enforcing sanctions for speaker shout-downs and similar acts of interfering with the expressive rights of others.
Speaker shout-downs are the heart and soul of the campus free speech crisis. We could eliminate every free speech zone in the country and the crisis would still spin out of control if speaker shout-downs continue to go effectively unpunished. Only bills based on the Goldwater model go straight to the heart of the problem. Thankfully, Louisiana has recognized this. Passage of the Louisiana Campus Free Speech Act and similar bills in other states is our best hope to counter the surrender at Middlebury.