A trend explained: why colleges ignore their own free-speech policies

February 8, 2022 • 11:30 am

I’m not going to give any mea culpas for writing about an editorial from the Wall Street Journal, because although their op-ed section definitely leans towards the Right, that doesn’t mean you should ignore it. In fact, I found that the piece below (click on screenshot or make a judicious inquiry for a copy), made sense of something that has puzzled me for a long time. Why do many schools that have such strong official policies favoring free speech nevertheless ignore those policies when it comes to specific instances—especially when the “free speech” being exercised goes against “progressive” Left ideology or heats up a social media mob.

One example of this is the shamelessly hypocritical way that Georgetown University treated two professors who posted inflammatory tweets. The first one,C. Christine Fair, who posted very vicious anti-Brett Kavanaugh tweets during his Supreme Court confirmation, was defended by the GU Law School. The other, Ilya Shapiro, who posted arguably less inflammatory tweets about Biden’s promise to appoint a black woman as a Supreme Court justice, was suspended and forced to apologize. (He’s still suspended; see here and here for the story.)

You can find Georgetown’s policy on speech and expression here, and this is an excerpt:

As an institution of higher education, one specifically committed to the Catholic and Jesuit tradition, Georgetown University is committed to free and open inquiry, deliberation and debate in all matters, and the untrammeled verbal and nonverbal expression of ideas. It is Georgetown University’s policy to provide all members of the University community, including faculty, students, and staff, the broadest possible latitude to speak, write, listen, challenge, and learn.

The ideas of different members of the University community will often and naturally conflict. It is not the proper role of a university to insulate individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Deliberation or debate may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.

Individual members of the University community have the right to judge the value of ideas, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting those arguments and ideas that they oppose. Fostering the ability of members of the University community to engage with each other in an effective and responsible manner is an essential part of the University’s educational mission.

In the case of Shapiro, they blatantly violated this. He was punished for tweets that were “unwelcome, disagreeable, and offensive”. He shouldn’t have been. As a private school, Georgetown doesn’t have to adhere to such principles of free expression, but they do and say so. This leaves them open to a lawsuit, and I hope Shapiro brings one.

Why do schools do this? I’m deeply afraid that my own school, The University of Chicago, is walking back its well known free speech policy, with deans and departments making statements that regularly violate our Kalven Principle of taking no official stands on politics, ideology, or morality. (Individuals, of course, are welcome to say whatever they want subject to court interpretations of the First Amendment.)  But official statements act to chill speech, making people self-censor lest they be ostracized for bucking “official” opinion. And, though they’ve been declared illegal here by our last President, they still festoon the websites of several departments. Why are they still up? I had no idea.

Here’s a short explanation, which rings very true to me, about why universities don’t seem to care much about free speech (click on screenshot). The author, John Hasnas, is a professor of Law and Business at Georgetown.

Hasnas’s explanation for why colleges don’t care about free speech is simple:

Regardless of Mr. Treanor’s political views, he has every reason to do this. University administrators get no reward for upholding abstract principles. Their incentive is to quell on-campus outrage and bad press as quickly as possible. Success is widely praised, but there is no punishment for failing to uphold the university’s commitment to free speech.

Short and sweet, and probably true. Now a place like the University of Chicago, which does attract students because of our famous support of free-speech, may have some incentive to keep those policies alive. And it’s my mission to keep those policies not only alive, but enforced.  If they’re not enforced, as I fear will happen, well, what does the U of C have to lose?  A few students, perhaps, but what is that compared to the onslaught of a social-media mob that could put the University in a bad public light?

But I digress.  Hasnas is right, I think, but his solution to the problem seems bizarre and unworkable. Here it is:

The solution is to create an incentive for schools to protect open inquiry—the fear of lawsuits. First, universities should add a “safe harbor” provision to their speech policies stating: “The university will summarily dismiss any allegation that an individual or group has violated a university policy if the allegation is based solely on the individual’s or group’s expression of religious, philosophical, literary, artistic, political, or scientific viewpoints.” This language would be contractually binding. Second, free-speech advocates should organize pro bono legal groups to sue schools that violate the safe-harbor provision. This would make it affordable for suppressed parties to bring suits over the violation of their contractual rights.

University counsel, whose primary job is to protect the institution from being sued, would then have incentive to curb administrators’ behavior. They might require that allegations of harassment be reviewed by a member of the counsel’s office who knows how to distinguish complaints about speech from genuine harassment. They almost certainly would revise the university’s antiharassment training to stress that students and faculty shouldn’t file complaints based solely on the content of the viewpoint being expressed. These and other steps they might take would give universities’ abstract commitments to freedom of speech some real bite.

In the absence of damage awards, university administrators won’t act against their own interests merely to uphold an abstract commitment to free speech. The threat of such awards would make universities like Georgetown put their money where their mouths are.

Why won’t this work? Because what incentive do universities have to make themselves liable for lawsuits by adding this “safe harbor provision”? If you have no incentive to keep free expression alive, what incentive would you have to deliberately make yourself liable to lawsuits for violating such expression? Hasnas is asking universities to modify their speech codes to make them into contracts under which people could then sue the university. Why on would they do that? They’d do it only if they cared deeply about preserving free speech. And they don’t.

True, once such contracts are in place, University Legal could fight any speech-repressing behavior of administrators, departments or other University members. They would have to, for their job is to protect the legal interests of the university. But I still don’t understand, nor does Hasnas explain, why universities could create “the fear of lawsuits” by putting these “safe harbor” provisions into place.

It seems to me that only an attorney specializing in criminal law could make such a suggestion. And sure enough, that’s what Hasnas specializes in. First you get your university to make a law whose violation could prompt lawsuits, and then the threat of lawsuits will keep the university honest. But WHY would a university make such a law when it doesn’t care about free speech in the first place?

Maybe I’m missing something, but this sounds weird.

13 thoughts on “A trend explained: why colleges ignore their own free-speech policies

  1. Your analysis sounds right. Why would a university adopt a rule that opens itself to lawsuits? I suppose the only way it would work is if the federal government made it a requirement for all schools that accept federal monies. Doesn’t sound like something that is likely to happen anytime soon. Perhaps with a Republican president and Congress who wants to stick it to the Woke?

  2. I think that the students have to make this an issue. The faculty won’t, or won’t in sufficient numbers, because they are scared of the students. I think the problem has gotten worse with the explosion of bureaucracy at schools in the past several decades.

  3. Maybe it only makes sense to lawyers. On paper, they want to appear to have free speech, to be ready for the reality of students pushing the limit. To acknowlege the pushback.

  4. Is there no implicit contract created by the schools’ policies regarding freedom of speech and academic freedom? I mean, people spend a lot of money to go universities, and at least part of their decisions are made based upon stated policies. Cannot the universities be held liable for that breach?

  5. Hasnas’s solution strikes me as something of a Rube Goldberg contraption.

    Plus, does any sector of US society really need an additional inducement toward litigiousness?

  6. European countries don’t have a broad 1st Amendment (though something like it), but they typically have much more robust employer protection regulations, which means in practice, they are much more free. Another quirk in the US is that organisations seem like mini-fiefs, who can apparently establish all sorts of rules, have their own mini-police, with a mini-court, with mini-investigations, and mini-judges and juries. Whereas, in Europe, laws are more universal and if something needs legal settling, the courts of the land are responsible. Reading about these constant problems, from free speech to campus police suggests that this right wing libertarian approach is not working (surprise!)

    The solution is for the state to keep laws broadly intact i.e. establish that people aren’t serfs of some liege lord — they can say and do whatever they want in their own time, and it’s none of the business of the employer or however you call your totalitarian overlords in the US. The institution can only pursue its interests where it concerns their matters, their time and resources, within reason. Once you‘re out of the building and their property, you should be able to walk on your hands and shout slurs in alphabetical order.

  7. I agree that Hasnas gives a sensible answer to the question of why colleges ignore their own free-speech policies. To interpret his proposed solution, and see how it *might* work, one can pose another question “why do colleges have a free speech policies at all?”.

    The answer is trivial for public universities/colleges — they have to abide by the first amendment. But what about private institutions like Georgetown? I think there is a PR benefit from being vocal supporters of free speech, and therein lies the wedge that may allow Hasnas’s proposed solution to work. If a way can be found to paint their support of free speech as superficial and meaningless, their fear of reputation loss may induce them to act.

  8. The Georgetown Board of Directors could probably push the President to support free speech, under implicit threat that they’ll recommend he be replaced if he doesn’t. Though that would depend on who is on the board and what their job description says.

    But in theory, that’s a way to help assist in this: you make it the Board’s job to ensure the mission statement of the University is upheld, and you put a dedication to free expression and inquiry in the mission statement.

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