Free speech on campus, a legislative proposal

Today at the Heritage Foundation, Stanley Kurtz rolled out and discussed model legislation to promote free speech at state colleges and universities. He was joined by Jim Manley and Jonathan Butcher of the Goldwater Institute and Casey Mattox of Alliance Defending Freedom. I previewed their presentation here.

There’s probably no need to persuade Power Line readers that freedom of speech is under siege on America’s campuses. As this whitepaper by the Goldwater Institute reminds us:

Speakers who challenge campus orthodoxies are rarely sought out, are disinvited when called, and are shouted down or otherwise disrupted while on campus. Speech codes that substantially limit First Amendment rights are widespread. New devices like “trigger warnings” and “safe spaces” shelter students from the give-and-take of discussion and debate.

When protestors disrupt visiting speakers, or break in on meetings to take them over and list demands, administrators look the other way. Students have come to take it for granted they will face no discipline for such disruptions.

The model legislation presented today addresses these problems head-on at public colleges and universities, over which state legislatures have control. In addition, as I explained in my earlier post, it may be that the debate over the legislation will influence the policies of private colleges and universities as well.

What are the elements of the model legislation?

First, it creates an official university policy that strongly affirms the importance of free expression. Any restrictive speech codes would be nullified.

Second, campuses would be declared open to anyone invited by members of the campus community. The legislation bars administrators from excluding speakers, no matter how controversial, from whom members of the campus community wish to hear.

Third, the legislation establishes a system of disciplinary sanctions for anyone who interferes with the free-speech rights of others. Importantly, the disciplinary system would include due rights protections (e.g., right to confront the witnesses accusing them) for those brought before it, unlike the typical college disciplinary system in sexual harassment cases, for example.

Fourth, the legislation allows persons whose free-speech rights have been infringed by the university, and who sue the university in response, to recover court costs and attorney’s fees if they prevail.

Fifth, the legislation affirms the principle that universities, at the official institutional level, must remain neutral on issues of public controversy. It thus frees professors and students from pressure to support an official position, thereby encouraging the widest possible range of opinion and dialogue within the university.

Sixth, it requires that students be informed of their institution’s official policy on free expression. Freshman orientation would stress the importance of free speech and the disciplinary rules that back up the institution’s commitment to it.

Seventh, it authorizes a special subcommittee of the university board of trustees to issue a yearly report to the public, the trustees, the governor, and the legislature on the administrative handling of free-speech issues. This mechanism would likely deter administrators from restricting free speech, lest they be reported by the trustees to the legislature that controls the purse strings.

You can read the model legislation here, at the end of the Goldwater Institute’s whitepaper. We have reached a point in our history where this legislation will be controversial, especially in state legislatures where the left has considerable influence. But with so many legislatures now in non-liberal hands, we can reasonably hope that the model bill, so consistent with what liberal education should be about, will gain traction.

The sooner the better.

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