Education / Schools, Free Speech, Law Schools

First Monday Musings By Dean Vik Amar: One Dean's Take On Public University Speech Suppression

Dean Vik Amar analyzes one proposal to protect free speech on campus.

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student protest protester protestor campus free speechI hate seeing instances in which people who are controversial for their conservative or ultra-conservative views are prevented from delivering invited remarks at public universities because opponents of the (arguably repressive) messages have protested, obstructed, or caused injury to persons and property. Some of the objectors are students; others are community members. Some want only to protest and speak themselves; others aim to disrupt and prevent the speaker from speaking. This latter distinction is crucial; no matter how odious a speaker’s message, the appropriate response in our constitutional system is counter speech, not physical obstruction or violence. Freedom of speech and so-called academic freedom both rest on the bedrock belief that ideas and arguments ought to be evaluated on their substance. The essence of both kinds of freedom is the opportunity to persuade others of the merits of one’s argument, rather than the use of power to coerce others into acceding to the proponent’s point of view.

Given all this, it is not surprising that some folks are proposing regulatory reforms — measures that interest me not just as a student of free speech, but as an academic administrator (a dean) who could be professionally affected by new regulations. One legislative template, a variant of which is being introduced in state legislatures, comes from the Goldwater Institute, a conservative Arizona think tank. The bill’s proponents describe their objectives as follows:

The model bill . . . is designed to change the balance of forces contributing to the current baleful national climate for campus free speech [at public universities]. Administrators generally feel pressured to placate demonstrators who interfere with the free expression of others, so as to move campus controversies as quickly as possible out of the public eye. Students who know they have little to fear in return for shouting down visiting speakers or interfering with public meetings feel free to protest in highly disruptive ways. In this atmosphere, students or faculty who disagree with current campus orthodoxies are left intimidated and uncertain of administrative support for their rights. Meanwhile, all students suffer for want of opportunities to hear the very best arguments on opposing sides of public questions.

There are some parts of the template legislation I find potentially attractive. The proposal would, among other things, require universities to “create[] an official university policy that strongly affirms the importance of free expression.” Such an explicit policy statement (depending on the particulars) could be a good thing. The bill also “establishes a system of disciplinary sanctions for students and others who interfere with the free-speech rights of others, while strongly protecting the due-process rights of those accused of such disruption” which, again, depending on some particulars, could be helpful. The bill seeks to ensure “that students will be informed of their university’s commitment to free expression, and of the penalties for the violation of others’ free-speech rights, during a special section of freshman orientation.” Early formal orientation on freedom of expression at the university could dispel many common misunderstandings.

But there are other aspects of the template I find troubling. Although the text of the bill isn’t crystal clear on this point, the executive summary says the provisions “establish[] the right of students, student groups, or members of the faculty to invite outside speakers of their choice to the campus. . . . [and] prevent[] administrators from disinviting speakers, no matter how controversial. . . .”

I have two quibbles here. First, to the extent that the university itself may be subsidizing outside speakers who are invited by student/faculty organizations, the university should be able (provided it is doing so consistent with the First Amendment) to impose some constraints on the kinds of speakers invited. Second, although disinviting speakers who were (permissibly) invited is never something to be happy about, there are instances in which public safety or the smooth operation of the university require it. In some of the high-profile cancellations/disinvitations featured in the media, university administrators were confronted by genuine threats of violence by disruptors, many of whom were not university students or employees subject to university administrative discipline. The template legislative proposal acknowledges the university’s authority to promulgate and enforce reasonable time, place and manner regulations, but does not adequately spell out what a university should do if it reasonably believes that such regulations will not be followed and that violence or significant property damage might easily ensue.

The biggest qualm I have with the proposed legislation concerns the model bill’s “affirm[ation] of the principle of institutional neutrality on issues of public controversy. . . . When a university, as an institution, takes a strong stand on a major public debate, this inherently pressures faculty and students to toe the official university line, thereby inhibiting their freedom to speak and decide for themselves. . . . This is particularly true for state universities, which should reflect the diverse views of the entire population of the state that provides the university funding.”

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Although the bill’s drafters say this provision regarding institutional neutrality is “aspirational” only, and that a university’s overseeing body should “monitor” progress toward this goal of neutrality, I think the aspiration itself is wrong-headed. While public universities should encourage independent thinking and avoid indoctrination, they shouldn’t be muzzled in speaking out on public policy issues on which they have some knowledge and in which they have a stake. Consider immigration policies that affect the ability of foreign students and scholars to interact with American universities. Or the virtues of civil discourse in a pluralist society. Or the desirability of affirmative action. Or the value of public support for higher education generally. All of these are politically hot topics, and ones on which public universities should themselves be encouraged to share their views, internally and externally.

Nor does the fact that public universities are funded by taxpayers who themselves have a range of political views mean that these institutions should remain silent. All of government is funded by taxpayers, and government speaks out on controversial issues all the time (think anti-smoking and other public health campaigns, encouragement of people to vote or serve in the military, erection or removal of statues and other memorials, etc.). While I appreciate that many on the right feel that public universities lack ideological balance, the answer – even as an aspiration – is not to stifle universities from speaking themselves, even as universities should work harder to make sure that dissenting voices are not shouted down (or worse) on their campuses.

Vikram David Amar Vik AmarVikram Amar is the Dean of the University of Illinois College of Law, where he also serves the Iwan Foundation Professor of Law. His primary fields of teaching and study are constitutional law, federal courts, and civil and criminal procedure. A fuller bio and CV can be found at https://www.law.illinois.edu/faculty/profile/VikramAmar, and he can be reached at amar@illinois.edu.

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