Conservatives should focus on creating the legal space for innovation in higher education, not regulate it more.
The University of California, Berkeley emerged again as a bastion of protest against perceived fascism. Alt-Right leader Milo Yiannopoulos was invited by the Berkeley College Republicans to speak on the campus, only to be blocked by protestors and violent rioters. President Trump, in true late-night form, tweeted: No free speech, ‘NO FEDERAL FUNDS?’
The rise of righteous fury on Sproul Plaza recalls the events of 50 years ago, when a newly installed California Governor named Ronald Reagan brought the campus to heel, expressly campaigning on a get-tough-with-Berkeley message to Golden State voters. A month into his first term as Governor, Reagan fired the university’s president Clark Kerr, called for state funding cuts to the University of California by 10 percent and for tuition to be charged for the first time, and after a series of confrontations finally ordered the National Guard onto campus to quell fierce riots. That day in 1969 became known as “Bloody Thursday.” It’s not clear what Governor Reagan’s actions ultimately accomplished. Sproul Plaza became a shrine of the New Left, a place where countercultural street theater achieved sacramental status. Berkeley became Berkeley.
President Trump too might profit politically from heavy-handed tactics like threatening to cut off federal funds. Many would cheer if he followed through—just imagine the anger of self-important academics and administrators after the spigot got turned off. Trump’s rumblings garner sympathy after eight years of attacks on the pluralism of higher education launched by the Education Department’s Office of Civil Rights. The Obama OCR’s “Dear Colleague” Letter threatened to withhold funds from any university or college that would not, among other demands, lower the evidentiary standard for those accused of sexual assault. There have been many injustices carried out since this policy was cravenly adopted by colleges and universities, who abandoned their trust responsibilities to their students.
The coup de grace, though, was Obama’s Solicitor General Donald Verrilli noting that even private religious colleges refusing to grant equal treatment in their policies on the basis of same-sex marital status might have the Bob Jones treatment in store for them. The Verrilli comment was gratuitous, not germane to the case, and redolent of the braggadocio of Progressives in thrall to their own belief in their limitless power. What he said became part of the brush fire pushing religious conservatives into Donald Trump’s camp in the fall of 2016.
We should note the folly of Verrilli and company. They had gotten caught up in the reality of human pride that when not institutionally checked leads to an illiberal politics. But we shouldn’t emulate the sentiment that produced them by imposing conservative snap-back policies. Money always talks, and the Trump tweet certainly got people’s attention (though there is disagreement as to whether the chief executive could single-handedly cut off the funding). But the issue shouldn’t be revenge or to employ the tactics of a “ruffian.” Reprisals only lead to further reprisals.
Rather, the issue is how to best preserve what is good about American higher education. And that good is found in its diversified excellence as observed in the manifold institutional forms of state colleges, private liberal arts colleges, religious colleges, polytechnic colleges, historically black universities, community colleges, and vocational institutions, and the histories, philosophies, and religious missions that formed these institutions. Protecting these institutions, many of which are struggling to even stay financially afloat, means something quite different from saying “NO FEDERAL FUNDS.” As a fiscal matter, I’d like to see federal funding of higher education virtually eliminated. But context matters here, and such a move would be seen as an attempt to reconstruct higher education by a GOP-controlled Washington.
For those not impressed with my reasoning, imagine President Warren wielding the same power. I know, you say, she hardly needs such a pretext. Maybe. But having your opponents set the table for you helps Warren’s social justice pill go down even easier.
Why not construct policies around the approach aptly summarized by Peter Lawler, who said, in a recent Liberty Law Talk, “Let Pomona be Pomona, let Oberlin be Oberlin, but let BYU be BYU.” That is, if Pomona chooses to pursue its mission by refusing to let conservatives speak or organize on campus, well, let Pomona live with that level of pettiness. As a private institution, it can currently do so, but threatening to remove its tax exempt status or imposing other penalties shouldn’t be done in response. But BYU also gets to keep its full understanding of what constitutes a proper pedagogical environment. Why not announce that federal policies toward higher education will promote the pluralism of higher education and not tie tax-exempt status, federal funds, or any other federal recognition to falling in line with various ideologies? Where the federal government has the ability to relax accreditation monopolies on higher education, it should do so.
And while it’s a very heavy lift, perhaps with regard to higher education, there should be a willingness to rethink that while free speech historically has been doctrinally formed on a state- versus-speaker distinction, perhaps context—and not just public status of an institution— should become more decisive in how we evaluate speech rights. This approach has been urged by Paul Horwitz in his book First Amendment Institutions. He argues that speech is impossible without the institutions that both form it and give it the opportunity to be heard. Institutions are the “scaffolding” of the individual’s right to free speech and should be accorded greater autonomy from the state in their self-government. But what is the nature of those institutions? Shouldn’t that be taken into account before compelling them to accord high levels of speech protection?
Horwitz would include colleges and universities in this category. Maybe these institutions, both public and private, in pursuit of their various missions get leeway regarding whose speech rights they recognize. But that shouldn’t be an overwhelming problem given our educational pluralism. There may not be a Wheaton for every Pomona, but those that do exist can be loud and proud about it. Berkeley is unique, and there are many state universities that resemble it, but there’s also Texas A&M openly welcoming conservative speakers, students, and groups to thrive on campus. Even more, it’s not a stretch to think that similar state universities will emerge in this scenario, under the discipline of good judgment, even conservative state legislatures, that desire to compete for such students who don’t have a home on Sproul Plaza. Enabling competition amidst institutional diversity, not imposing a template of either the Right or the Left, is more in keeping with both our history of education and with a classical liberal political order.