Trustee Talk, Issue 17: Free Speech Issues on College Campuses, Part I

Question:

What should boards know about free speech rights guaranteed by the First Amendment and academic freedom on campus?

 

Answer:

Most Americans assume that public community colleges practice the First Amendment rights of free speech and academic freedom, but in today’s highly polarized society, these assumptions are being tested. What was thought to be a basic right is now being adjudicated through a foggy lens of what differentiates free speech from hateful speech. The issues and circumstances are not all black and white, and public colleges and universities are now in the middle of the uproar.

In March, President Trump issued an executive order on free speech that directs federal agencies to regulate colleges’ and universities’ compliance with free-speech requirements. “If a college or university does not allow you to speak, we will not give them money,” he said. The executive order was a response to incidents of universities disinviting controversial speakers, sometimes citing security concerns. Colleges may be further tested by students speaking out and invitations to those who might bring disruption and even violence to our campuses.

Trustees need to be aware of the complex issues involved. Speech codes, free-speech zones and “heckler vetoes” may be considered First Amendment violations, according to a Department of Justice lawyer1. The First Amendment to the U. S. Constitution protects speech, no matter how offensive it is, and any restrictions by public community colleges (with some exceptions such as speech inciting imminent lawless action) are considered censorship and violations of the Constitution.

According to ACCT Legal Counsel Ira Shepard, the most important legal issue for boards is designing and overseeing a policy that threads the needle of ensuring that the campus allows speakers with divergent and controversial points of view while at the same time addressing the institution’s responsibility to maintain a safe, violence-free campus environment. “This is an important responsibility of every board,” he says.

Boards also must be aware of state laws governing campus speech. In reaction to several high-profile speakers not being allowed to speak at colleges across the country, two states, Arkansas and Kentucky, recently passed legislation barring “free speech zones” on college campuses, which critics charge limit the practice of protests and free speech. In February 2019, Kentucky House Bill 254 clarified First Amendment protections and regulated “the use of college free speech zones that prohibit spontaneous demonstrations outside of specific areas on campus.” Under the law, free speech is generally allowed in accessible outdoor campus areas, and college administrators could continue to restrict permits for demonstrations as long as spontaneous assemblies and outdoor distribution of pamphlets are not prohibited: “Under the bill, any person who believes their right to free speech has been violated by a university would be able to bring a cause of action.”2 Several other states have passed similar laws (North Carolina, Wisconsin), and several more have legislation under consideration.

According to Jay Box, president of the Kentucky Community and Technical College System, which governs 16 community colleges, the new law will not substantially change anything done on the state’s campuses because existing policies already protect free speech. “We used to have designated free speech zones on our campuses, but the law has evolved to require more than certain designated zones,” he says. “Generally speaking, we accommodate free speech in all areas of our campuses that are generally accessible to the public, provided such free speech does not interfere with or disrupt the activities of our campuses, pose safety hazards, or violate the provisions of law. Although we plan to make some minor tweaks to update or clarify language in our policies, the new free speech law will not substantially change anything we do on our campuses because our policies already permit, encourage, and facilitate the free expression of speech on our campuses.”

Safety Concerns: Fear of Violence

Kentucky’s Box says that “while we need to encourage the free exchange of ideas, the bigger concern for all of us in higher education is the potential for violence.” During 2018, appearances by controversial speakers were met by lively protests and in some cases violence at the University of California-Berkeley and the University of Virginia, and institutions have had to respond accordingly.

According to Politico, in October 2018 “Florida officials declared a state of emergency and spent $600,000 on security at the University of Florida in Gainesville for a visit by [white supremacist Richard Spencer] after the university relented and allowed him to speak after the threat of a lawsuit.” There were loud protests, but the event ended without violence; however, three men connected with white-supremacy groups “were arrested on charges of attempted homicide after one allegedly fired a gun into a crowd.”

Many college leaders remain concerned about the potential of violence erupting at similar events on their campuses. For the past five months, Kentucky system leaders and college presidents have held workshops on various aspects of school safety. “We all have to pay attention to student issues, and we must be prepared in this climate. We even gave a presentation to the state governing board,” Box says.

With their fiduciary responsibilities, most boards would prefer to avoid disruption and violence on their college campuses. But to uphold the free speech rights of students and faculty, they need to be on sure footing before accepting or denying requests to invite speakers who have sparked disruption on previous campus visits. In a March skirmish at Beloit College in Wisconsin, students refused to stop playing drums and cymbals and then piled chairs on the stage to prevent Blackwater founder Erik Prince from speaking. Beloit released a statement citing student safety as the reason for subsequently canceling the event while adding that the protest jeopardized the college’s commitment to open dialogue and pledging an investigation.

Civil discourse or self-censorship?

Rather than invite outside speakers, Sanford J. Ungar, inaugural director of the Free Speech Project at Georgetown University and president emeritus of Goucher College, suggests that both liberal and conservative organizations or groups of students should engage in intellectual discourse over the issues rather than bring in well-known speakers. “Colleges are supposed to be havens of discourse…but current events are putting college leaders and their boards on notice: A great deal is at stake; if nothing else, basic human rights guaranteed by the U.S. Constitution,” says Ungar, who also is a free speech professor at both Georgetown and Harvard.

“One person’s hate speech is another’s noble idea,” Ungar tells Trustee Talk. “Speech that is offensive is protected. We should not have to make a choice… We are better protected if we honor free speech. It is more profoundly valuable if all are included.” He agrees with former ACLU President Nadine Strossen, who argues in her book, Hate: Why We Should Resist It with Free Speech, Not Censorship, that the best response to hate speech is “more speech” to promote “equality, dignity, inclusivity, diversity, and societal harmony.”3

As a former college president, Ungar understands that presidents and boards have safety concerns and that the political environment is “more tense now.” His advice to boards is to encourage dialogue to learn about ‘the other’ and understand that there are more than two sides to an issue. “We need to model civil discourse,” he says. “Don’t necessarily worry about a college’s reputation. Democracy is disorderly. We need to encourage institutions to promote open dialogue, but no one should be subjected to listening to white supremacists. Some protestors have rights too.”

The alternative, Ungar argues, is self-censorship. “We are tending to force conversation to the middle of the road so as not to provoke. Speaking out made this county. Protest is protected speech. Self-censorship is very dangerous,” he says. Ungar considers community colleges “open forums” and “lively centers of dialogue” and aims to include more two-year colleges in the Free Speech Project, which is developing free curriculum modules for all institutions. “That would be instructive and informative,” he says.

Hate groups at all-time high

Colleges are being bombarded on all sides in today’s politically contentious environment. The Southern Poverty Law Center (SPLC), which monitors hate groups, announced that their participation is at an all-time high and reported more incidents of intimidation and hateful expression. The number of hate groups is rising, from 917 in 2016 to 1,020 in 2018, according to SPLC.

Issues of free speech and the suppression of hateful speech which is protected by the First Amendment need to be a concern of boards and college leaders, but such concern should not be a cause for prior restraint4 of student-selected speakers and abridgement of faculty academic freedoms. According to PEN America (see box, p. 32), “there is no consensus around a legal definition of hate speech in the United States, and the extent to which hate speech is protected under the First Amendment remains fiercely debated in our court system.” 5

What’s a board to do?

In addition to potential lawsuits, incivility on campus, and loss of reputation, trustees and college leaders also must consider the following issues:

  • Threats of oversight by governmental agencies that allocate resources
  • Grants and projects funded by certain organizations
  • Disruption and violence on campus in classrooms
  • Lack of control over public spaces on campus
  • “Professional agitators,” not students, inciting riots and destruction
  • Threats that change the course of speakers, commencement speakers, student organizations, funding
  • Misrepresentation of what the college stands for and of its values and core beliefs.

Create a team of decisionmakers

When dealing with any free speech issues, Shepard counsels colleges to develop a team of decisionmakers. “To follow through on their responsibilities, the board should make sure that its administration has a ‘cabinet’ of effective decisionmakers who can, as the need arises, address substantive First Amendment and safety concerns,” he says.

Shepard attended a postmortem of the successful planning the University of Florida conducted when hosting Spencer in the aftermath of the Charlottesville tragedy. “Planning was the key,” he says. “They put together a group which included the dean of students, the head of campus safety, and two other senior administrators who oversaw careful planning, liaison with the students and speaker, and most important, safety procedures and rules. Central to their planning was also to reach out and coordinate with county, state, and other law enforcement for advice and help.”

As part of its planning, the university visited another college that already had such a “cabinet” in place to understand the extent of potential problems they could expect. The group acts as needed in order to plan for controversial events. “This is a way to allow the events to proceed and also to safeguard the whole community at the same time,” notes Shepard.

Best practices for presidents

In its Pulse Point survey of presidents on free speech and campus inclusion, the American Council on Education (ACE) found that 98 percent of 471 college and university presidents indicated that protecting freedom of speech and promoting an inclusive society are very important to our democracy.6 These same presidents identified the top five practices used to manage the tension between these two principles:

  1. Clear, public statements that reinforce stated institutional values;
  2. Open community forums that provide a space for dialogue on issues of free speech and inclusion;
  3. Monitoring social media for potential causes of concern;
  4. Professional development for faculty; and
  5. Meeting with student groups about what they need to feel safe on campus.

On a more controversial note, the same survey also indicated what student actions presidents consider acceptable. The variation in their responses not only shows the differing opinions of campus leaders but also the ambiguities around the First Amendment and what students and board members should know about the issues.

Part II of this Trustee Talk on Free Speech will cover the topics of protected and unprotected speech and provide sample scenarios. Part III will include input from a brief survey on this topic by some of ACCT’s community college trustees and presidents across the country.

Cited Resources

  1. “ If There Is a Free-Speech ‘Crisis’ on Campus, PEN America Says, Lawmakers Are Making It Worse”, Katherine Mangan, The Chronicle of Higher Education April 2, 2019.
  2. “Bill to Manage ‘Speech Zones’ at Kentucky Colleges Moves Forward”, Liz Schlemmer, 89.3 WFPL, Feb 26, 2019.
  3. "Free Speech vs Hate Speech,” Sam Sanders, NPR, June 5, 2018.
  4. https://www.law.cornell.edu/wex/prior_restraint
  5. Chasm in the Classroom: Campus Free Speech in a Divided America, PEN America, April 2019, p. 14.
  6. American Council on Education Infographic: Free Speech and Campus Inclusion
  7. PEN America, About Us, April 4, 2019.
  8. Ibid.
  9. Chasm in the Classroom: Campus Free Speech in a Divided America, p. 22.
  10. Ibid.
  11. Ibid.

Disclaimer: This newsletter is offered for general informational purposes only. It is not offered as and does not constitute legal advice. The views and opinions expressed in this article are those of the author and they do not necessarily reflect the official policy or position of the association. 

Do YOU have a Question for us? Email your question to: Norma Goldstein