Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
In a recent post, I discussed the use of left wing institutions by the right. Here I want to discuss a specific idea for promoting a so called right wing idea – protection of free speech on college campuses from violence and other disruption – by using the methods that the left has employed in the past.
A common problem on both public and private campuses is that violent and disruptive protesters prevent right wing (and other controversial) speakers from giving speeches and presentations on campuses. In addition to preventing the events from being conducted in an orderly fashion, the threat of these protests sometimes causes schools either to cancel invitations or to refuse to allow invitations in the first place. It is also a common perception, especially of those on the right, that school administrations are not sympathetic to these right wing groups and therefore do not punish or otherwise hold accountable the students who are responsible for these threats and disruptions.
How could Congress address this issue? It is not hard to come up with a way – one that is modelled on the institutional mechanisms used by the Department of Education to enforce its understanding of Title IX.
Congress could pass legislation supported by the following findings: Free speech on college campuses has been undermined through violence, threats of violence, and the shouting down of speakers. Such actions are inconsistent with the idea of a university and are often illegal under state law, but the universities have failed to sufficiently prosecute such actions or protect speakers. Thus, it is necessary for the government to step in to protect such speech.
Congress could provide that any university receiving funds from the government has an obligation to protect freedom of speech on its campus. Schools that receive federal funds have an obligation to have rules against infringements of freedom of speech through violence, threats of violence, and refusals to follow rules that allow speakers uninterrupted time to present their views. Such schools shall undertake to enforce these rules in a diligent manner. At a minimum, schools must take significant efforts to apprehend students who violate these rules, and must at the least record the names of the violators on their records. Schools shall be obligated to suspend for at least one year students who have been determined to have violated the rules more than once.
Congress could also require that schools provide annual reports to the Department of Education providing information about the actions undertaken by the school, which events were improperly disrupted, which students were found to have violated the rules, and what penalties were imposed. The Department could also be required to receive complaints from speakers whose presentations were disrupted.
Finally, and most importantly, Congress could require that the Department of Education take actions to deny federal funds to schools that violate these rules.
These rules would put enormous pressure on schools to start protecting freedom of speech on their campuses. It would no doubt lead to significant resistance from schools, but the threat of a loss of government funds is significant.
I should say that I do not necessarily favor such an arrangement. I don’t like a heavy handed federal government micromanaging institutions. But that is what we have already, except it is generally controlled by the left. If that is how our country is going to run, it is worth letting the other side know what its like to be on the receiving end of such heavy handedness.
Update: It appears that others are thinking about this problem. See here for a discussion of model legislation for the states to address these concerns.