Reestablishing universities as guardians of free speech

The marketplace of ideas is under attack. The front lines have formed on university campuses. And remarkably, universities are leading the charge. 

Within the last year, law students at Stanford and Yale shouted down speakers with whom they disagreed. Encampments raged at Columbia, University of Chicago, Florida, UCLA, and other schools. Stanford students participating in a protest march entered an engineering building, constructed makeshift barriers, and spray-painted a wall — all while other students were working in the building.

The protesting students invoked freedom of speech, and administrators all too often agreed.  Both groups were wrong, and it is time that universities start teaching them why.

At least at law schools, some instruction is in the offing. Confronted with growing threats to campus speech, the American Bar Association recently adopted Standard 208, which requires all law schools to adopt policies protecting the rights of faculty, students, and staff “to communicate ideas that may be controversial or unpopular.” “[F]ree, robust, and uninhibited sharing of ideas reflecting a wide range of viewpoints,” the ABA now acknowledges, is necessary for “[e]ffective legal education and the development of the law.”

Standard 208 is an encouraging first step, but it is not enough. To educate students effectively, law schools need to do at least two more things: (1) reconsider policies that undermine free speech, and (2) enforce permissible restrictions on expression that threatens operations or student safety.

MIT just announced that it will no longer require diversity statements from prospective faculty members. Why? Not because it believes that creating an inclusive community is no longer important. Rather, MIT recognizes that compelled statements not only are ineffective, but also infringe on freedom of expression.   

Requiring faculty candidates to explain how their work supports a university-approved worldview impedes robust and open discussion. It sends a clear and powerful institutional message: If you want to be hired, promoted, or tenured, champion the school’s viewpoint, or, at a minimum, remain silent and hope your silence is not held against you.

Challenging established orthodoxies is virtually impossible, however, when a school requires everyone to sing from the same ideological hymnal. To avoid stifling debate, schools must remain institutionally neutral on social, political, religious, and moral issues.  As University of Chicago’s Kalven Committee Report emphasized, “[t]he university is the home and sponsor of critics; it is not itself the critic.”

Just last month, Harvard decided it was finally time to adopt a version of the Kalven Report, pledging to (generally) remain institutionally neutral on public policy issues. Other universities should follow suit. Instead of taking sides on contested topics, universities should shape social and political values by training faculty, students, and staff to be active participants in researching, debating, and writing about the important issues of the day. 

Unfortunately, not all academics share this vision. In the wake of former Harvard president Claudine Gay’s ouster, the dean of social sciences at Harvard penned an op-ed contending that professors have diminished speech protection and that they can — and should — be punished for public statements that might “incite external actors” (such as alumni and donors) to “intervene in Harvard’s affairs.”  

Threats to academic freedom also are found closer to home. Following some (undisclosed) student complaints about course content and conduct, UNC Chapel Hill’s business school secretly recorded Professor Larry Chavis’s economics class, using the footage as part of an unannounced professional review. UNC then declined to renew Professor Chavis’s contract after 18 years of teaching — without telling him the reason for his dismissal or the specifics of the complaints. One can almost feel the chilling effect on speech emanating from Harvard and UNC.  

Administrators and academics would do well to remember United States v. Alvarez, a case in which the Supreme Court explained that “[f]reedom of speech and thought flows not from the beneficence of the state but from the inalienable rights of the person.” Those freedoms do not flow from the university either, and for good reasons. Adopting a school-approved view pressures members of the academic community to conform or remain silent. This pressure is especially acute for students, staff, and junior/contract faculty members, all of whom must rely on the administration for so many aspects of their professional development and livelihood — a lesson Professor Chavis painfully learned.

Furthermore, universities must make clear that freedom of expression is not absolute. Certain speech is unprotected (e.g., true threats, fighting words, obscenity, and defamation) and can be prohibited consistent with the Constitution and Standard 208. Reasonable time, place, and manner restrictions also are permissible to enable schools to carry out their educational mission.

Even when convinced that one holds the moral high ground, there is no heckler’s veto, no right to preclude others from exercising their speech rights or to interfere with the safe operation of the school. Universities exist to educate all, not just the most vocal or disruptive.

A university has the authority — indeed, the responsibility — to remove encampments, like those that recently popped up on campuses across the country, when they violate these viewpoint-neutral principles. Granted, determining when and how to stop disruptive protests may be difficult. But teaching students to engage controversial issues through reasoned argument and debate is essential to a university’s mission, especially in a divided nation.

Now is a critical time for institutions of higher learning, and there are reasons to hope for a rebirth of freedom of expression, properly understood. Last year, the University of North Carolina Board of Trustees unanimously approved the creation of a new school at UNC Chapel Hill committed to free expression. And the University of Austin has promised “students, faculty, and scholars… the right to pursue their academic interests and deliberate freely, without fear of censorship or retribution.”

In addition, High Point University is opening a new law school that will champion free speech principles. As part of the inaugural faculty at HPU law school, we are building a program rooted in freedom of thought, inquiry, and expression to train lawyers who are equipped to represent their clients effectively — and to lead — in an increasingly polarized world.

Protest is an important and powerful form of expression. But so is reasoned argument in defense of a contrary position. Universities should remain neutral caretakers of both.