Today, March 2, the Fifth Circuit Court of Appeals will hear arguments in Speech First v. Fenves. Six amicus briefs joined by nine organizations—several with national profiles—were filed with the court in August 2019 supporting the Speech First organization’s lawsuit against the University of Texas (UT) over its bias response team (BRT) policies. UT has hired outside counsel to defend. What is so important about this case?
The BRT for UT’s 52,000-student campus is called the Campus Climate Response Team (CCRT) and it is empowered to investigate and sanction any speech that is perceived to be discriminatory based on “race, color, religion, national origin, gender, gender identify, gender expression, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation.” According to UT’s administrative rules, speech should be reported if perceived as “offensive, insulting, insensitive, or derogatory” and occurring “in the classroom, on social media, at a party or student organization event.”
If the City of Austin passed such a policy for its residents or visitors, it would be an obvious First Amendment violation. While some kinds of inflammatory speech targeting specific nearby individuals—“fighting words”—are not constitutionally protected (as established in Chaplinsky v. New Hampshire, 1942), criticizing group characteristics and behaviors is protected speech, regardless of the groups’ perception of the criticism. Certainly criticizing supposed white supremacy, white privilege, or white fragility is common enough on campuses these days.
Federal District Court Judge Lee Yeakel, however, held that UT had the right to balance free expression with civility and that the student plaintiffs who wished to remain anonymous had weakened their standing to complain. He also accepted UT’s assertion that, although administrators followed up on the complaints and held hearings, they did not actually discipline offenders of the desired campus climate. Thus the Plaintiffs had no “objective fear” of censorship.
The six amicus briefs were filed by a wide variety of organizations ranging from the centrist American Council of Trustees and Alumni (ACTA) to the libertarian CATO Institute to the conservative Alliance Defending Freedom (ADF). These briefs touched on essential issues, such as the important role that anonymous speech has played in American history, the national trend of BRTs specifically targeting conservative speech, and—perhaps most importantly—the chilling impact that public shaming has on free expression.
Beyond these arguments, there is the question of why academic institutions would try to judge and, by implication, seek to control speech regarding such a wide variety of topics that are discussed passionately off campus every day. Are they really just sending a message of civility, or is it a matter of censorship? Only a few of the BRT policies on the almost 200 campuses where they exist emphasize the role of free speech in American life and jurisprudence, opting instead for stern, admonitory lists of “no go” topics subject to administrative questioning.
“Inclusion” Over Debate
An answer to the question of administrative motivations may be found in my new book Silenced Stages: The Loss of Academic Freedom and Campus Policy Debates. Based on research on a stratified sample of 97 campuses and 28 law schools enrolling almost a million students, we considered 24 policy questions at the top of the American political agenda. Our research team found that, with very few exceptions, campuses do not sponsor programs exposing their students to public policy debates or forums with diverse viewpoints. The number of such events was substantially less than one per thousand students. Despite the many recent speaker disinvitations and speech disruptions in American higher education, the administrative response to campus controversies was almost never that the issues raised should be subject to campus debate.
For example, after some unknown person chalked “deport” and “build a wall” on campus sidewalks, President Wallace Loh of the University of Maryland College Park responded that many “young men and women at UMD and elsewhere are questioning where free speech ends and hate speech begins.” President Loh went on to say that “Surely when wielded as a weapon hate speech does not deserve constitutional protection.” He pointed out that UMD had:
policies in place that protect undocumented students to the fullest extent the law permits. We have retained staff to support them and invited volunteer attorneys to advise them…. We allocated $100,000 for additional diversity and inclusion programming to benefit all members of the UMD community. We will deploy a trained rapid–response team in any hate-bias incident in order to provide support to any UMD member who is the subject of such an incident.
President Loh, who was previously a lawyer and dean of a law school, did not suggest that his university had the responsibility to sponsor civil, well-balanced debates or forums about immigration policy. In Silenced Stages, we found very few on-campus debates on immigration policy anywhere in the country, though these issues are highly controversial. When an ideologically balanced immigration debate actually was scheduled at the University of Seattle Law School in 2017, its dean canceled it, arguing that the Trump administration had “generated great fear within vulnerable immigrant communities and has caused real harm, making discussions of immigration policy that include a conservative viewpoint even more painful and anxiety- and anger-producing for those individuals and families who are at risk (and for their allies).”
To cite another example, Carol Swain, a Professor of Political Science and Law at Vanderbilt, wrote an op-ed in Nashville’s major newspaper titled “Charlie Hebdo attacks prove critics were right about Islam.” Though she made no reference to anything on her campus, more than 1,500 Vanderbilt students and alumni signed an online petition originally asking that she be disciplined. When Vanderbilt’s Chancellor Nicholas S. Zeppos commented on the controversy, he did not suggest that the role of Islam in the world be debated, speakers be invited, or that any other educational programs be initiated. He did not describe or discuss any of Swain’s specific ideas. Instead he wrote:
I have heard and appreciate the serious concerns of our students and alumni who have signed an on-line petition calling for the suspension of Carol Swain…. Professor Swain’s opinions are her own. They do not reflect the opinions of the university in any way. They are not my opinions, the opinions of the provost, or the opinions of the university leadership.
Chancellor Zeppos further explained his motivation: “Ensuring that our campus is a safe, welcoming place and supportive environment for every member of the Vanderbilt community has been and always will be our top priority.” He conceded that freedom of speech is important at Vanderbilt, but he added that “speech whose sole purpose or effect is to discriminate, stigmatize, retaliate, offend, foment hatred or violence, or cause harm has no place in this university.” But if speech that has the “effect” of offending someone has no legitimate academic role, then could a professor safely compare sharia law to the Bill of Rights or, for that matter, discuss any topic relating to religion in a classroom or an op-ed?
In short, the growth of BRTs and the absence of campus policy debates stem from the same motivation to make campuses inclusive and welcoming to every student, even at the cost of insulating them from the controversies which will decide the future of our democracy. Students—whether they are full time or part-time, residential or non-residential, away from home for the first time or combat veterans—are regarded as wards of campus administrators, not as full citizens.
Campuses Aren’t Exempt From the First Amendment
This trend is completely contrary to the Supreme Court’s view of the role of the First Amendment in campus disputes. The Court in Keyishian v. Board of Regents (1967) declared that “to impose any strait jacket upon intellectual leaders in our colleges and universities would imperil the future of our nation….Teachers and students must always be free to inquire, to study and to evaluate, to gain new maturity and understanding, otherwise our civilization will stagnate and die.” Five years later, the Court in Healy v. James (1972) declared:
Yet the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite the contrary. The college classroom, with its surrounding environs, is peculiarly the “marketplace of ideas,” and we break no new constitutional ground in affirming the Nation’s dedication to safeguarding academic freedom.
In Rosenberger v. University of Virginia (1995), the Court asserted:
The quality and creative power of student intellectual life to this day remain a measure of a school’s influence and attainment. For the University [of Virginia], by its regulations to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers of the Nation’s intellectual life, its college and university campuses.
Even when the speech involves language offensive to some ethnic group, the judiciary is far more protective of free speech than are BRT policies. In a 2010 case, David Rodriguez et.al v Maricopa County Community College, the Ninth Circuit had to decide whether a faculty member’s emails to the college community arguably demeaning Hispanics violated the College’s obligation to create a workplace free of written harassment under Title VII. Plaintiffs sued the College for failing to discipline a mathematics professor who criticized La Raza, immigration, and multiculturalism while lauding Western civilization and Columbus Day. The Circuit panel, including retired Supreme Court Associate Justice Sandra Day O’Connor sitting by special designation, ruled the College could not discipline the professor even though his remarks were inconsistent with its diversity policy. In Chief Judge Alex Kozinski’s words:
The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most unquieting and orthodoxy is most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment.
He went on to note the special role of the University:
This is particularly so on college campuses. Intellectual advancement has traditionally progressed though discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive, if certain points of view may be declared beyond the pale.
After its litigation against UT, Speech First also challenged BRT policies at the University of Illinois (Seventh Circuit) and Iowa State University (Eighth Circuit). College campuses would be more in line with the constitution’s protections of free speech if they would rein in their BRTs and instead take positive steps to sponsor programs of civil, fact-based public policy debates. Building speech barriers around the campus to shield persons from political controversy does not prepare students for democratic participation.