Congress vs. Campus Speech Restrictions

Congress vs. Campus Speech Restrictions

Of late, there has been a deluge of news accounts detailing gross violations of free speech and debate on American campuses. From campus speech codes, to commencement speaker "dis-invitations," to naked ideological indoctrination in the classrooms, our universities, whose defining mission is the unfettered, nonpartisan quest for truth, are instead becoming havens for conformism, empty shells of the Socratic ideal from which they originally sprang.

But this oppressive regime may be beginning to crumble, at least if some members of the U.S. Congress have their way. In June, the House Judiciary Committee's Subcommittee on the Constitution and Civil Justice held a hearing titled, "First Amendment Protections on Public College and University Campuses," which investigated the extent to which free speech is still protected on taxpayer-funded campuses.

The findings from the investigation were not heartening, to put it mildly. As a result, Rep. Bob Goodlatte (R., Va.), chair of the House Judiciary Committee, recently sent a pointed letter to 162 public colleges and universities whose policies fail to ensure the First Amendment rights of their professors and students.

The House committee's list of freedom-suppressing public schools comes from research conducted by the nonprofit Foundation for Individual Rights in Education (FIRE), whose announced mission is to protect intellectual liberty on America's campuses. Surveying FIRE's list of offenders, we find a number of public flagships, among them the University of Alabama, the University of Georgia, the University of Iowa, the University of Kansas, the University of Michigan-Ann Arbor, and Ohio State University. In my home state of Texas, taxpayers fund ten named offenders, among them the state's two flagship institutions, the University of Texas-Austin and Texas A&M University-College Station.

It is illegal for any public college or university to maintain and enforce speech codes that violate the First Amendment-guaranteed rights of faculty and students. At the June Subcommittee on the Constitution and Civil Justice hearing, Greg Lukianoff, FIRE's president, testified that "speech codes — policies prohibiting student and faculty speech that would, outside the bounds of campus, be protected by the First Amendment — have repeatedly been struck down by federal and state courts. Yet they persist, even in the very jurisdictions where they have been ruled unconstitutional. The majority of American colleges and universities maintain speech codes."

Of the schools nationwide in violation of the First Amendment, the 162 recipients of the House committee's letter were found to be the worst offenders. Chairman Goodlatte writes, "In FIRE's Spotlight on Speech Codes 2015, your institution received a ‘red light' rating. According to FIRE, a ‘red light' institution ‘is one that has at least one policy that both clearly and substantially restricts freedom of speech.'" Hence, Goodlatte writes "to ask what steps your institution plans to take to promote free and open expression on its campus(es), including any steps toward bringing your speech policies in accordance with the First Amendment."

The named offenders have until August 28 to reply to Chairman Goodlatte's inquiry. How they choose to respond will determine the committee's course of action.

With this strong move by the House committee, we witness the academic world turned upside down: Academic freedom has always been supported, and rightly, as a defense against anti-intellectual pressure brought on universities by the political branches. The deeper defense of academic freedom is its indispensability to the nonpartisan truth-seeking that defines higher education's mission. But what happens when those who would deprive students and faculty of their First Amendment freedoms are within the universities themselves? This, unfortunately, is the crisis in which many universities find themselves today. For the solution, Congress has taken it upon itself to educate the educators in what those who supervise our universities should already know, namely, that when intellectual oppression rises, scientific progress and democratic deliberation decline.

Given the stakes involved, it is encouraging to see that there is growing bipartisan support for restoring freedom on our campuses. While Representative Goodlatte is a Republican, in the past year, two Democratic governors — Terry McAuliffe of Virginia and Jay Nixon of Missouri — have signed legislation banning "free-speech zones" at all public universities in their states. As I have argued previously, in America, under the First Amendment to the Constitution, everywhere should be a free-speech zone, not simply the restricted (and restrictive) spaces that the majority of universities today unconstitutionally deign to provide for students.

Although legislative action might prove necessary in the event that universities decline the House committee's plea to follow the Constitution, it would be heartbreaking if these institutions had to be compelled by a political branch to jettison their political agendas and return to disinterested inquiry. It would mean that American higher education has so lost any sense of its defining — and ennobling — purpose that it now has to be guided by those outside it, rather than guiding them, as it ought.

As a former university professor, I have seen firsthand the effect that the intolerance on our campuses has on the minds and souls of our students. As is the case in political regimes that suppress free speech, university policies that stifle debate produce an atmosphere of anxiety, distrust, and ultimately cynicism among those who suffer it. "Students' education suffers when colleges and universities infringe on free speech," observed Azhar Majeed, director of FIRE's Individual Rights Education Program.

Rightly said. Fear, intimidation, and uniformity are usurping the free, robust inquiry and debate that is the lifeblood of a genuine institution of higher learning, undermining both academic truth-seeking and democracy, which depends on an informed citizenry. The effect of campus-promoted intolerance is to jettison an informed, independent-minded citizenry and to replace it with a cowed, guilty, uncritical herd. From the students suffering under this regime will in time come our nation's leaders. Will they be able to face without blinking the profound moral challenges that every generation must face?

If so, it won't be due to their education. It will be in spite of it.

Thomas K. Lindsay directs the Centers for Tenth Amendment Action and Higher Education at the Texas Public Policy Foundation and is editor of He was deputy chairman of the National Endowment for the Humanities under George W. Bush.

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