Congress Should Deregulate Private Universities, Not Regulate Them More

Although I am twice a graduate of Harvard, I have told my wife that any donation to my alma mater would signal senility. It is was a smug and illiberal place when I attended and its insularity and illiberalism have only grown since I graduated. The latest absurdity is to penalize students there for joining same-sex clubs that have no legal association with the university—originally on the false premise that these were places were women were likely to be assaulted and now on an ideology that claims the authority to direct students on the proper places to party.

Thus, it might seem that I would be sympathetic to a provision of a Republican bill on higher education that would prevent colleges from disciplining students on the basis of their membership in a fraternity or sorority.  But this legislation strikes at the heart of classical liberal view that private institutions, particularly those involved in education, should be able to determine their own programs and values, even if they do not sit well with the government. Different people have different views on how the next generation is to be educated: it is not for the state to decree one set of values.

This is true even of constitutional principles, like free speech, which some legislatures are considering imposing on private universities. While any administration that wants to create a great university should welcome a diversity of views on campus, this too is not issue for the government. The Bill of Rights applies to only state, not private, action.

Contrast this provision with those excellent provisions in the same bill that prevent government regulation of private institutions. For instance, the bill precludes colleges from being penalized such as by the loss of tax exempt status if they not condone same-sex relations. These anti-regulatory provisions are to be applauded because they provide space for religious and other colleges to educate students in an atmosphere that reflects their own values.

The strongest argument against the view that conservatives should not seek to regulate private colleges is that when the left gets power they are happy to do so. As a result government higher education policy becomes a one-way ratchet with left adding ever more onerous left wing policies when they get into power and the right adding none of their own. Indeed, as the Obama administration showed, it did not need new legislation to impose their will on private colleges. It just issued extravagant interpretations Title IX and other educational laws that did not go through notice and comment rule making but effectively bound universities who were fearful of losing federal funds.

But instead of imposing new regulations, the Republican Congress should disable future administrations from issuing such interpretive rules and instead making clear that colleges deserve deference in how they are to comply with whatever federal regulations are on the books so as not to interfere with their educational mission. Since most institutions like autonomy, this would have the advantage of making universities opponents of future efforts to eliminate such deference.

Harvard follows many bad educational norms. But the way to combat them is through sustaining freedom, not creating regulations.