Last week's decision by NFL owners to exact penalties on players and teams who choose to kneel in protest during the playing of the national anthem is just the most recent in a long history of concerns around speech and protest - who gets to speak on which topics when and how - in our country. A number of high-profile incidents involving controversial speakers on college campuses in recent years has focused the attention of lawmakers on the idea of a crisis of free speech in higher education. The fact that public institutions of higher education are considered government actors held to the strictures of the First Amendment complicates matters, though there are many threads to the conversations around threats to speech on college campuses and not all of them apply to constitutional rights. This post will review some of those threads and provide examples from some of the nearly 50 pieces of legislation in 30 states that has been introduced or considered in 2018 relating to campus speech.
While most of the legislation concerning speech on campus has been introduced at the state level, Congressional legislators have shown increased concern about campus speech holding multiple hearings on the topic in the last year. Most recently, on May 22, 2018, the House Oversight Committee Subcommittees on Healthcare, Benefits, and Administrative Rules and on Intergovernmental Affairs held a joint hearing addressing the topic (Challenges to the Freedom of Speech on College Campuses: Part II). The witnesses included several higher education faculty members involved in some of the more publicized campus speech incidents and a number of scholars in the field. There was disagreement both among the witnesses and the Committee members as to whether the challenges to speech on college campuses presents a crisis or are simply a matter of a few extreme and highly publicized incidents that are not representative of the typical campus experience. Notably, most of the witnesses seemed to agree that the best remedy to the concerns was not to legislate additional requirements for college campuses, but rather to continue conspicuous oversight so that campuses remain vigilant in protecting the rights of all their students.
Legislative Oversight & the FORUM Act
Model state legislation proposed by the controversial conservative organization American Legislative Executive Council (ALEC) entitled the Forming Open and Robust University Minds (FORUM) Act provides a means for states to do just as the witnesses in last week’s Congressional hearing recommend. As we noted in February when we first started tracking the FORUM Act in several states, the bill requires campuses to establish and communicate appropriate policies and procedures around campus speech incidents and creates an accountability process for institutions to report on free speech issues to their state legislatures or Governors. Two states, Virginia (VA H 344) and Georgia (GA SB 339), enacted versions of the FORUM Act in 2018, though it failed in five other states: Iowa (SSB 3120 / SF 2344); Oklahoma (HB 3586); South Carolina (H 4440); Washington (HB 2324); and West Virginia (SB 111). A version of the bill is still pending in California (CA SB 1388), though failed passage out of committee in April and is unlikely to progress.
Free Speech Zones & the CAFE Act
Concerns around perennially-controversial free speech zones have led to court cases and the state legislation to prohibit their use. We reviewed the history behind free speech zones in our blog post Campus Free Speech 2017 Legislative Round-up & Considerations Following Charlottesville, and noted that at least one recent court case that may work its way up to the Supreme Court to settle the question nationally. In the meantime, state legislation to prohibit campuses for using free speech zones has been considered in at least nine states in 2018. Most of the legislation includes some or all language in model legislation supported by the Foundation for Individual Rights in Education called the Campus Free Expression (CAFE) Act. Some of the bills, such as Louisiana SB 364 passed by the state legislature and awaiting Governor Edwards’ signature, combine restrictions on use of free speech zones with language from the FORUM Act to require institutional policies, communication, and annual reporting. Legislation prohibiting free speech zones on colleges campuses is pending in California (SB 1381 / ACA 14 and AB 2081), Illinois (SB 1560), New Hampshire (HB 477), and New York (A 4066 / S 6126). Four states considered similar legislation but did not pass it: Florida (SB 1234 & HB 909); Kansas (SB 340); Nebraska (LB 718); and South Dakota (SB 198 / HB 1073).
Concerns related to intellectual diversity, sometimes predicated on a belief that colleges and college faculty intentionally or inadvertently prompt conservative voices to self-censor, have prompted legislation designed to prohibit institutions and individual faculty from expressing opinions or taking stands on some issues. An optional clause in the FORUM Act prohibits campus leaders from speaking out or taking action as an institution on “the public policy controversies of the day” and several states considered legislation that either requires or recommends that faculty "should be cautious in expressing personal views in the classroom". Legislation in this vein, considered and failed in five states, also frequently prohibits free speech zones on campus and removes the ability of college administrators to disallow speakers invited to campus by any student, faculty, or officially recognized group. It should be noted that while self-censorship may indicate a chilled environment that is unwelcoming to some ideas, it does not necessarily constitute an unlawful restriction on speech. Self-censorship should be as much of a concern when historically marginalized or oppressed populations feel unable to speak as it seems to be when conservative students self-censor, but an individual choosing not to speak for fear of social repercussions is not necessarily the same as a government actor actively prohibiting speech. NASPA’s Policy and Practice brief Safe Spaces and Brave Spaces: Historical Context and Recommendations for Student Affairs Professionals provides more resources for student affairs professionals looking to foster safe and brave spaces that foster supported risk-taking to reduce self-censorship on their campuses.
Sanctions for Disruptions
Provocateurs - speakers some accuse of speaking only to incite a reaction rather than to consider or discuss ideas in a free and open dialogue - seem to seek out colleges and universities specifically because they are noted defenders of free speech. These speakers may use institutional concerns about student safety as weapons to attack campus leaders, claiming their efforts to keep the peace equate to unconstitutional stifling of speech. Advocates seeking to defend the humanity of individuals of historically marginalized populations on the basis of their race, gender identity or expression, sexual orientation, or religion are targeted by these provocateurs. Model legislation proposed by the libertarian think-tank The Goldwater Institute in January 2017, and discussed in more depth in our August 2017 blog post, represents the most concerning response to campuses seeking to ensure both free speech and student and campus safety. In addition to prohibiting campuses from disinviting speakers, the Goldwater Proposal legislatively mandates specific sanctions of suspension or expulsion for students who are found to “infringed expressive activity” twice. Given that many of those protesting conservative provocateurs are students representing historically marginalized populations, many of which continue to face increased barriers to accessing and completing higher education, this level of proscribed sanctions is especially concerning. Legislation following the Goldwater Proposal passed in Arizona (HB 2563), is still pending in California (SB 472), and failed in Minnesota (SF 2451 / HF 3394), Oklahoma (SB 1202), West Virginia (HB 4203), Wisconsin (AB 299 / SB 250 & AB 440 / SB 351), and Wyoming (HB 137).
What Do Student Affairs Professionals Need to Know?
Knowing the policy conversations around campus speech is only part of the responsibility of student affairs professionals. Nimble and knowledgeable responses to emerging incidents have long been part of student affairs, though the many tangled threads of the campus speech conversation, as highlighted above, require careful consideration and planning. In November 2017, NASPA Public Policy Division held a virtual Town Hall discussion on free speech on college campuses featuring Bobby Woodard, Vice President of Student Affairs at Auburn University, and Allen W. Groves, University Dean of Students at the University of Virginia. Both speakers provided detailed descriptions of recent events on their campuses involving controversial speakers, including their preparations and lessons learned. NASPA is committed to providing the latest information and analysis to our members and is proud to announce a new Policy and Practice brief on The First Amendment and the Inclusive Campus: Effective Strategies for Leaders in Student Affairs. This brief offers strategies to address key aspects of managing controversial speakers and demonstrations on college and university campuses. Further, it provides ideas and examples for challenging divisive speech when appropriate; that is, engaging such speech as an opportunity for reflection and action in order to uphold the values and promote the intellectual vitality of our campus communities. We are also happy to welcome those who will be attending Free Speech vs. the Inclusive Campus: An Unending Struggle in Alexandria, Virginia Sunday and Monday! As always, if there are particular policy conversations we can provide more information on to help you help your campus and your students, please let us know!
Photograph by Mike Peel (www.mikepeel.net); retrieved from Wikimedia Commons.
 Senator Orrin Hatch (R-UT) has introduced the Free Right to Expression in Education (FREE) Act (US S 2394), but the bill has no co-sponsors and appears unlikely to be taken up by Senate leadership. Companion legislation has not been introduced in the House.