Free Speech

Why Conservative Lawmakers Are Turning to Free-Speech Bills as a Fix for Higher Ed

A few months ago, Patrick Colbeck, a Republican in Michigan’s State Senate, picked up George Orwell’s dystopian novel 1984. What he read sounded familiar: oppressive oversight, restricted speech, and twisted interpretations of reality. But the government isn’t creating this totalitarian atmosphere, he felt, colleges are.

“Instead of actual sources of truth that can only be found through free discourse that allows multiple world views, our college campuses are becoming more and more like the Ministry of Truth,” he wrote last month, upon unveiling two campus free-speech bills. “‘Newspeak’ is becoming the language not only of our universities but our communities at large.”

The critique that college campuses have become hostage to a limited worldview — specifically, a liberal one — is a common refrain among conservatives in state legislatures. And free-speech bills like his have become one of the main ways in which they are aiming to right the ship.

Michigan is one of about a dozen states in which such bills have been introduced, aimed at liberating college students from oppressive speech codes or preventing them from shutting down people whose views they oppose. Politicians point to disruptive protests against conservatives at the University of California at Berkeley and Middlebury College, along with safe spaces and trigger warnings as signs that a liberal orthodoxy is impressing itself upon college students.

These legislative efforts are encouraged by a number of national organizations promoting campus free-speech laws. The Goldwater Institute, a conservative and libertarian public-policy think tank, came out with model legislation this year that includes penalties such as expulsion for students who shut down speakers and requires universities to report on campus-speech issues each year. Supporters say such legislation is necessary because colleges have failed to take threats seriously and fully promote the free flow of ideas.

Stanley Kurtz, co-author of the Goldwater model and a senior fellow at the Ethics and Public Policy Center, traces the problem back to a decades-long encroachment of radical orthodoxy. Today, the “intellectual monopoly of the Left” on college campuses has created a free-speech crisis, he wrote in April in the National Review, that is “locked-in and unchangeable in the absence of outside intervention.”

A Culture Change

The recent flurry of statehouse action on free speech began about two years ago, sparked by a series of events that include a wave of campus protests around racism, the rising debate over safe spaces and trigger warnings, opposition to campus free-speech zones, and student disruptions of guest speakers.

College leaders and professors, too, worry that open debate is taking a backseat to harsh rhetoric and hostile demands, but they generally differ from the mostly Republican state lawmakers who have backed these bills over whether public-policy changes are needed. The American Association of University Professors, along with officials at a number of state higher-education systems facing these bills, have noted that colleges already have policies to address issues of free expression, protest, discipline, and the invitation of outside speakers. The wording of some campus-speech bills, they add, could interfere with institutional autonomy.

Two of the main groups promoting legislation have been the Foundation for Individual Rights in Education, or FIRE, which advocates for free speech and due-process rights on campus, and the Goldwater Institute. FIRE has promoted legislation that does away with speech codes, including limits on where students and others can speak on campus. It also supports parts of Goldwater’s model bill, which was released in January.

That model policy prevents the disinvitation of speakers, establishes penalties for those who interfere with speech, enables legal recourse for those whose rights have been violated, requires colleges to stay neutral on controversial public-policy questions, and requires a yearly report on free-speech issues on campus, among other things.

In 2015, Mr. Kurtz, of the Ethics and Public Policy Center, published an article in the National Review, “A Plan to Restore Free Speech on Campus,” outlining elements that came to be part of the Goldwater plan. “The First Amendment doesn’t protect itself. That’s what citizens and their representatives have to do,” he writes in an email, noting that he studied freedom-of-expression reports produced by Yale University in 1974 and the University of Chicago in 1967 and 2015 for ideas. “And since administrators have failed to safeguard our most fundamental liberty, the legislature is obliged to do so.”

More recently, the American Legislative Exchange Council, or ALEC, a network of legislators and corporations that promotes conservative causes, weighed in with its own model for campus free-speech policy. ALEC recently created a Center to Protect Free Speech to focus on campus speech, donor privacy, and commercial speech. The public chair of the center is State Sen. Leah Vukmir of Wisconsin, a Republican who introduced a free-speech bill in her state this year. It requires colleges to remain neutral on controversial public-policy issues, prohibits protests designed to prevent speakers from appearing, and outlines penalties for those who inhibit free speech.

Shelby Emmett, director of the Center to Protect Free Speech, says the group’s membership first became concerned about campus speech issues during the University of Missouri student protests against racism on campus, in the fall of 2015. In particular, she says, the video of a professor blocking a student journalist from covering one of the events was disturbing.

This year, when a protest against a planned speech by the conservative firebrand Milo Yiannopoulos at the University of California at Berkeley grew violent, “I just thought, you know what, let’s reach out to different groups and see what we can do.” She has looked for ideas from organizations such as the Alliance Defending Freedom, a conservative Christian group that promotes religious freedom on campus, as well as FIRE, where she was the legal and legislative policy advocate and strategic outreach officer. Both those groups, she says, are concerned with eliminating restrictions on students’ First Amendment rights.

ALEC’s Forming Open and Robust University Minds Act eliminates free-speech zones; affirms the right to free expression, including protest; protects belief-based organizations from discrimination; and requires colleges to talk to students about free-expression policies and to submit an annual compliance report, among other things.

Ms. Emmett differentiates it from Goldwater’s proposal by saying that it’s “purely educational” as it does not include disciplinary measures. “The legislature has a role to play because a public institution has an obligation to protect free speech,” she says. “But there is an academic-freedom element to that, so we don’t want a top-down approach.”

Goldwater has helped shape bills in several states, including North Carolina, Michigan, Wisconsin, Illinois, California, and Louisiana. It also helped create a model for a bill passed in Arizona in 2016 that banned campus free-speech zones.

Joe Cohn, FIRE’s legislative and policy director, says his organization is supportive of free-speech bills, but opposes legislation that sets specific penalties for violators. He also says some descriptions of infringements on speech are so vague that they could potentially limit protesters’ rights. He has been talking to sponsors in Michigan and Wisconsin, for example, about using more precise language. “Not every legislator is a First Amendment scholar,” he says. “We engage and talk to them as frequently as we can to do this carefully, and that’s going to be difficult work.”

Laying Down the Law

Both the Goldwater and ALEC model bills are viewpoint neutral, and the organizations stress that they want to defend all forms of speech. “We would be doing it regardless of what’s being said,” says Jonathan Butcher, Goldwater’s education director.

But the state bills introduced to date have been largely backed by Republicans. (Some bills have received significant bipartisan support, but they tend to focus on eliminating free-speech zones or affirming freedom of expression on campus.) And their sponsors, while stressing that this is a First Amendment issue, often point to national controversies involving conservative speakers and a general sense of liberal bias as their impetus. Sometimes, they point to specific anecdotes and events in their states.

Mr. Colbeck, the Michigan Republican, says he was bothered when the University of Michigan’s president, Mark Schlissel, spoke at a vigil following the presidential election in which he seemed to be criticizing Donald Trump when he said, “Ninety percent of you rejected the kind of hate and the fractiousness and the longing for some sort of idealized version of a nonexistent yesterday.”

More broadly, Mr. Colbeck believes colleges present a one-sided view on a range of subjects. He came to that conclusion, he says, after surveying courses at his state’s public universities and rarely finding conservative or biblically based views represented. “This started with the PC movement,” he says. “Newspeak is trying to shrink the language down into acceptable words and not-acceptable words.”

In North Dakota, Rep. Rick Becker, a self-described “true conservative,” considered his free-speech bill, which passed the House but was voted down in the Senate, a preventative measure. “I’m seeing what’s happening elsewhere and it doesn’t make sense to me to say, Well, let’s wait until it’s rampant in my state,” he says. He also raised the specter of Newspeak — the fictional language of 1984, which is highly controlled and meant to limit freedom of thought — and criticized safe spaces, and says colleges have moved away from career preparation and “rigorous instruction” to their detriment.

Melissa Melendez, a Republican in the California State Assembly, introduced a resolution modeled on the Goldwater template after growing frustrated with a series of conflicts on California campuses, including protests over conservative speakers and a Republican student group being denied access to a women’s-history lecture. “The fact that college administrators have done nothing to ensure all of their students’ liberties are protected is shameful and un-American,” she said in a written statement when introducing her proposal, which would amend the state constitution and cover both public and private colleges.

She said that while this is an apolitical effort to defend the First Amendment, she sees the threats to free speech right now coming primarily from the left. “Since the presidential election in November,” she says, “things have gotten really ugly in California. Really, really ugly.” She has not yet found any Democratic backers.

In Wisconsin, Jesse Kremer, a Republican representative who sits on the state assembly’s higher-education committee, says the problem on campuses today is that “the leftist elite do not want the conservative voice to be heard.” Mr. Kremer, who has sponsored a bill modeled on Goldwater’s, cites as evidence inclusivity-and-diversity handbooks that seem to restrict acceptable language and policies that he says encourage students to report incidents of bias to campus police.

“They may talk a good game,” he says of colleges in the state, “but that’s not what’s going on: It’s our way or the highway and you have no right to believe what I don’t believe.”

‘Under Siege’

Critics of these bills argue that the measures are designed to score political points with a Republican voter base skeptical of higher education.

“Will these same state representatives also support the football player taking a knee during the National Anthem, burning of the U.S. flag at an ROTC ceremony, protests by the College Atheists at a campus memorial service, or a student-body president asking graduates to stand and turn their backs to a state official during commencement?” asks William Schultz, a mechanical-engineering professor at the University of Michigan at Ann Arbor who is the immediate past chair of the Faculty Senate.

In Tennessee, a free-speech bill signed into law this spring with bipartisan support was praised for being less intrusive than an earlier proposal. But that has not appeased academics like Mary McAlpin, a professor of French at the University of Tennessee at Knoxville and former head of the campus AAUP chapter. Faculty members, she says, are “under siege” in a state far more conservative than the campus at large.

“There’s a deep suspicion that we’re trying to brainwash students,” she says. A 22-year veteran of the campus, she believes the climate has worsened in the last five years, which she attributes in part to the attention legislators get through conservative-media channels when they oppose events like Sex Week, which focuses on educational programming for students, or divert money from the Office for Diversity and Inclusion. “They’re news hounds, they want to be quoted,” she says. “They want their legislation to be discussed in the newspaper. And in a state like Tennessee, universities are fair game.”

Luke Elliott, a junior at the Knoxville campus and treasurer of the statewide College Republicans is frustrated with both sides in the debate. He has not come across any instances of speech being shut down, but says there is “silent anger” among some conservatives who fear they will get in trouble with their professors or the university if they express their views. At the same time, the campus needs to figure out a better way to connect with politicians to prevent unnecessary conflict. “The legislature is also out of touch with what’s going on on campus,” he says. “These people are 50 years out of school, some of them.”

Michael J. Gerhardt, a constitutional-law professor at the University of North Carolina at Chapel Hill, says the free-speech bill in his state is a reflection of how divided the state has become between conservatives and liberals, people in rural areas and those in urban ones. The proposal “reflects the legislative leadership’s disdain for academic leadership and institutions of higher learning that the state has established.”

In Wisconsin, the dividing lines were drawn during a contentious and lengthy hearing of Mr. Kremer’s bill last month, with opponents arguing that conservatives are blowing the problem out of proportion and raising the specter of Big Brother coming to campus. Gary Hebl, a Democratic representative, likens the effort to diminish higher education’s reputation to McCarthyism, in which conservatives portray the university as a “left wing, Commie institution.”

“They’re drunk with power,” he says if the Republican party, which controls state government. “They keep taking positions thinking, Where can I make my base stronger?”

Others worry about the possibility of the government getting involved in what can be taught in the classroom, through neutrality clauses in some bills that require colleges to avoid weighing in on public-policy controversies. “How are we to be taken seriously as an institution of higher learning and research if our professors can be called before a ‘Council on Free Expression’ to defend their teaching of geology?” asked one University of Wisconsin at Madison professor, in a local newspaper article.

The heated rhetoric shows no signs of abating. This month Assembly Speaker Robin Vos, a backer of the free-speech bill, announced the formation of a new public-policy and leadership center at the University of Wisconsin at Madison that he said will be dedicated to “maximum free speech.”

Rebecca Blank, the university’s chancellor, described it as nonpartisan. But Mr. Vos sent a different message during a press conference: “Hopefully it will be able to offset some of the liberal thinking,” he said. “This is just hoping that we can have a balance of thought on campus.”

Beth McMurtrie writes about campus culture, among other things. Follow her on Twitter @bethmcmurtrie, or email her at [email protected]


McMurtie, B. (2017, June 8). Why Conservative Lawmakers Are Turning to Free-Speech Bills as a Fix for Higher Ed. The Chronicle of Higher Education. Retrieved from http://www.chronicle.com/article/Why-Conservative-Lawmakers-Are/240297


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