Progressives Are Now Arguing that the First Amendment Is Profoundly Limited on College Campuses

By David French

Friday, October 27, 2017

There are a few ways to respond to radical demands for campus censorship.

One is rather simple: Enforce decades of constitutional jurisprudence, and clearly signal to disruptive protesters that lawbreaking is grounds for serious discipline. Follow the law and the debate about free speech won’t end, but the wave of shout-downs will pass. Students, after all, don’t want to sacrifice their shot at a degree to stop, say, Ben Shapiro or Charles Murray from speaking. As a general rule, they’ll do what the college allows them to do, and nothing more.

Then there’s the opposite response: A number of progressive administrators, professors, and activists (over the objection of more liberty-minded colleagues) are seeking to redefine and ultimately eliminate the very concept of a “marketplace of ideas” on college campuses. They argue that the ultimate mission of the university is education, not providing a platform for any crazy idea someone wants to share, and that school administrators should thus have the right to determine who speaks on campus and how they speak based on whether the speech in question furthers this educational mission.

That, in a nutshell, is Yale Law School professor (and former dean) Robert Post’s argument in an extended piece in Vox. To justify an administrative role in determining not just who speaks on campus but what they are permitted to say, Professor Post says this:

The entire purpose of a university is to educate and to expand knowledge, and so everything a university does must be justified by reference to these twin purposes. These objectives govern all university action, inside and outside the classroom; they are as applicable to nonprofessional speech as they are to student and faculty work.

This is remarkably similar to the arguments made to my colleague Charlie Cooke in a recent and heated debate at Kenyon College. If speech is so offensive, hurtful, or maybe just plain wrong that administrators believe it would impair the educational mission of the university, then, the thinking goes, they should have the power to restrict that expression.

There are multiple problems with this argument, but I’ll focus on two: It’s both unlawful and absurdly impractical.

First, the law. When analyzing a free-speech case, the first question you need to ask is, “Who is speaking?” In the context of a public university, there are usually three relevant speakers: administrators, faculty, and students.

Administrators have the general ability to define the mission and purpose of their schools’ academic departments. They can mandate, for example, that their science departments operate within the parameters of the scientific method and on key issues apply accepted scientific conclusions. But this power isn’t unlimited. They can’t lawfully decide, say, that evolutionary biology will be taught only by atheists. In that case, the speech of the administrators collides with the First Amendment rights of the professors, and the professors win.

Similarly, while professors have the right to shape and control their classroom (some permit profanity and insults while others sharply limit discussion) and even have the right to require students, within the classroom context, to defend views they may find abhorrent, their control is not absolute. They can’t mark down conservatives for being conservative or silence Christians for being Christian. They can grade ideas and expression for academic rigor, but they cannot discriminate purely on the basis of ideology or faith. Just as you can’t “punch a Nazi,” you can’t “flunk a Nazi” if their work meets the standards of the class.

One of my old cases is instructive. Shortly after California voters passed Proposition 8, a ballot measure that defined marriage as the union of a man and a woman, a speech professor at Los Angeles City College walked into his class and declared that any person who voted for Proposition 8 was a “fascist bastard.” One of his students, a young man named Jonathan Lopez, decided to respond in a speech assignment. Lopez was asked to deliver a speech on “the topic of his choice,” and he chose to discuss and define his Christian faith. In the course of discussing the fundamentals of his faith, he briefly addressed marriage. His professor stopped his speech, angrily confronted Lopez, and then dismissed the class. Rather than grade his speech, he wrote on the evaluation paper, “Ask God what your grade is.” The professor’s “speech” thus collided with the student’s First Amendment rights, and the student’s rights prevailed.

In sum, individuals at each layer of university life enjoy considerable First Amendment protection. Indeed, no lesser authority than the Supreme Court has decisively declared that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.” In an extended passage in Keyishian v. Board of Regents, State University of New York, the court put the issue in the starkest of terms:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. . . . Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die. [Emphasis added.]

Applying these principles and precedents, lower courts have time and again struck down speech codes, granted equal access to university facilities, required equal access to student funding, and vindicated professors claiming lost job opportunities because of ideologically motivated viewpoint discrimination. If high-school students or teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” then adult college students enjoy at least equivalent rights.

A public university simply cannot do as Professor Post urges and essentially define all speech as university speech and place it under the umbrella of the school’s educational mission. Yet even if the First Amendment did not exist (or does not apply — like at private universities), Professor Post’s proposed top-down control of speech would be unworkable for all but those colleges with specific ideological or religious missions (think Bob Jones or Oberlin.)

Is it really the case that the university will be the arbiter of proper speech for campus Republicans, Democrats, Christians, atheists, Jews, and Muslims? Can it possibly craft a fair definition of “offensive” speech that satisfies the numerous and often-at-odds interest groups that populate any campus? Is it even intellectually prepared to anticipate what speech is educationally valuable and what is not?

Experience with modern waves of political correctness has already given us a rather decisive answer. Campuses invariably pick sides, they invariably impose double standards, and they always make fools of themselves. Think of Professor Post’s institution, Yale. Not long ago it briefly became a national laughingstock as radical students mobilized against two professors, Nicholas and Erika Christakis, in large part because the latter had the audacity to suggest that adult students could make their own choices about Halloween costumes.

If a private institution wishes to impose the kind of “education” that Professor Post urges, then it certainly can. It can do what religious colleges do: define an ideological mission, inform students and faculty in no uncertain terms that the purpose of the university is to advance that mission, and then limit speech and expression on campus that undermines that purpose. But there are costs to that approach: You limit your pool of student applicants, you repel faculty who seek greater liberty, and you change the definition of the school in the public imagination. And that’s a price places like Yale and Harvard aren’t willing to pay.

I almost want a public university to adopt the Post approach. Let’s see them try. At the conclusion of his piece he says, “The root and fiber of the university is not equivalent to the public sphere. If a university believes that its educational mission requires it to prohibit all outside speakers, or to impose stringent tests of professional competence on all speakers allowed to address the campus, it would and should be free to do so.” It “would” be free to do so? Oh really? Earlier in the piece, he declares, “The cardinal First Amendment rule of viewpoint neutrality has absolutely no relevance to the selection of university speakers.” The Supreme Court begs to differ.

If a school follows Post’s advice, the resulting legal defeat would be so decisive that it would serve as a warning for all those tempted to follow its example. The First Amendment does, in fact, offer extensive protections on campus. Generations of precedent teach a clear lesson: So long as men and women retain the courage to defend their liberties, university censorship is doomed to fail.