The ability of Congress to choose between administrative systems weakens the separation-of-powers system.
There are powerful reasons to be pessimistic about free inquiry and free speech on most campuses today. And I am not talking here about merely the obligation of schools to protect the talks of controversial speakers from being shut down—an obligation that flows from the First Amendment for state schools and from sound institutional principles for most private schools. But the academic mission requires more than that bare minimum. It should create an atmosphere where all views are welcomed so long as they are backed by reasons.
Today, four powerful currents threaten free speech and free inquiry. The first is the huge ideological imbalance on most campuses. The latest such study of faculty views comes from Harvard, where less than two percent of faculty define themselves as conservative. The most practical support for freedom of inquiry and speech as an enduring principle is the fear of censorship by one’s opponents. But it is almost inconceivable that any faculty member at Harvard or most other universities can even imagine a day when conservatives will have a plurality, let alone a majority of campus, and be in any position to make their own lives difficult.
Second, one of the most powerful justifications for free inquiry and free speech is that the competition between ideas leads to truth. But many leftist academics reject this premise. Postmodernists do not believe in truth. Marxists may believe in truth, but think the primary consideration in all relations is power. Even if such leftist academics are not a majority, they do constitute a substantial minority hostile to most widely accepted justifications for basic freedoms on campus.
Third, universities take institutional positions that discourage academics from considering, let alone stating, unorthodox positions on certain matters. Racial, ethnic and gender diversity is probably the most important such position, both because it is so pervasive and because it puts identity at the center of the modern university. Thus, it sustains a kind of identity politics within the university which naturally denigrates any principle, like that of free inquiry and free speech, which may undermine or challenge the assumptions of that politics.
Fourth, because of their own diversity policies and government regulations, modern universities employ many bureaucrats who set policies, displacing faculty governance. The bureaucratic mindset is, to put it mildly, not conducive to free speech and free inquiry. Unlike members of the faculty, academic bureaucrats are not engaged in research or inquiry. Instead, they are maximizing something else, like “inclusion” or compliance with their view of Title IX for which the values of free speech and inquiry may be at best irrelevant and at worse harmful. To paraphrase William F. Buckley, I would be rather ruled by first hundred faculty in the university directory than the first hundred bureaucrats found there.
It is hard to see how any of these phenomena are going to get better any time soon and until they do, free speech and free inquiry on campus will be endangered.