Greg Lukianoff’s fixes for the college free-speech problem

This post appeared at the Princetonians for Free Speech website, announcing a talk that FIRE‘s President and CEO Greg Lukianoff will be giving at Princeton on April 11, titled “The Conformity Gauntlet in Higher Education.” The body of the piece gives 16 suggestions Lukianoff has mnade for university administrators, national legislators, and state legislatures to help preserve both academic freedom and free speech on college campuses.

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I’ll give a brief summary of his suggestions (indented), and any comments I have will be flush left. The meaning of the asterisks (degree of my approbation) is given below

• ***Craft a National Leonard Law:  A California law passed in 1992 and amended in 2002, the Leonard Law prohibits non-sectarian public and private colleges in California from punishing any speech that would be protected off-campus. Under the Leonard Law’s terms, students may file civil lawsuits against their institutions and may recover attorneys’ fees. The 2006 amendment to California’s law adds protections for student journalists and newspapers, prohibiting “prior restraint,” which is the censoring of a specific forthcoming publication. A national Leonard Law would break what Lukianoff says is the “pretense” that private universities are in any meaningful sense “private” anymore. “Federal regulation, including so-called anti-harassment provisions, is utilized routinely to limit what you can teach and say on campus without actually applying First Amendment standards to protect academic freedom.”

Agreed. All campuses with the possible exception of religious ones should afford their members the same freedom’s as public universities.

• Place a cap on administrative spending: As a condition of receiving federal funds, Congress could impose a cap on the percentage of a university’s expenses that go to overhead costs. Overhead, defined as costs of administration plus development, can run as high as an astonishing 80 percent, especially at schools like Princeton.

To Lukianoff, this bloated overhead goes to “administrative overreach,” much of which is to police speech and academic freedom violations.

• *Curtail the protection of qualified immunity for public university administrators:  A doctrine originally designed to protect law enforcement officials from frivolous law suits and financial liability in cases where they acted in good faith or in legally murky circumstances, “qualified immunity” has come to be widely criticized for allowing public officials to avoid consequences for bad behavior.  Since 1982, it shields from liability all public officials performing discretionary functions (those acts requiring individual judgement) when their conduct does not violate statutory or constitutional rights known by a “reasonable person.” Is it reasonable for public university administrators to know when their conduct violates clearly established free speech rights?   “It is ludicrous to suggest that administrators bound by 1st Amendment don’t know they can’t censor people on the basis of viewpoint,” Lukianoff says.

I don’t have a strong feeling about the one above.

• ***Ban political litmus tests: These are clearly unconstitutional, yet widely used at universities throughout the country. A recent FIRE survey reveals that over 80 percent of large universities either include or are considering DEI litmus tests as criteria in hiring and tenure standards. Requiring allegiance to a politicized understanding of “diversity” constitutes “forced speech” and therefore violates First Amendment protections. But with universities routinely requiring such DEI loyalty statements, an explicit ban is necessary. FIRE has published model state legislation designed to ban all loyalty oaths from public universities’ admissions, hiring and promotion policies, taking particular care to avoid replacing one orthodoxy with another.

This is very important and I agree wholeheartedly. No loyalty statements or fealty to specified ideologies should be required for getting jobs or promotions.

• Designate one flagship state school in each state.  State legislatures could create premiere state universities which would admit only top students based purely on academic merit – test scores and grades. These schools would compete for students directly with the “fancies” – Lukianoff’s shorthand for the likes of Princeton, Harvard and Stanford.  Wise employers would prefer to draw from these flagship state schools as alternatives to Ivy league and other elite schools whose graduates increasingly bring with them the ideological baggage of intolerance for diverse viewpoints.

This is okay but not the best idea, and it would require enormous effort with, I think, little result.  What makes them think that such universities would be free of “political” ideological baggage, since the vast proportion of administrators and professors in all states are liberals, many “progressive.

• **Ban Legacy Admissions:  Under such legislation, which has been attempted in New York, Connecticut and Colorado in the last few years, colleges and universities receiving federal funds would be barred from giving preference to legacies in admission.

I agree, though this is probably impractical. Lukianoff sees legacy admissions, correctly as perpetuating elite, expensive colleges; and part of his program is to “put a serious dent in the stranglehold that the elite colleges continue to have on the culture.” In my view, his assessment of elite colleges as major players in the perpetuation of woke culture is too extreme. Wokeness is everywhere, and won’t go away if elite colleges simply stop preferentially admitting the children of alumni. (They do this to build legacies which, of course, fosters more donations to a school.)

• Increase Competition. Whole new institutions committed to academic freedom, like the University of Austin in Texas, Ralston College in Savannah Georgia, and Minerva University in San Francisco, constitute one form of competition, as do new centers at existing institutions, like University of North Carolina’s School of Civic Life and Leadership and Arizona State’s Center for American Institutions.

Not a big fan. We’d need a TON of such colleges to counteract what’s gong on at all the others. I think that this is one of the less effective remedies for suppression of free speech and academic freedom.

• Create an extremely difficult test:  This test might be called a BA GED which would allow those highest performing high school seniors who pass it to bypass college altogether and go directly to graduate school or to employment. Lukianoff anticipates that this would “scare the living hell” out of the Ivy League and other top schools, because they know that many of the best and brightest would pass this test and then choose to avoid both the costs of an undergraduate degree and the orthodoxy that has come to saturate so much of university life and contribute to the decline in quality.

Not a great suggestion, I think.  Bypassing college is not generally a good idea for the students, as they miss the chance to broaden their horizons before they begin specializing in graduate school. I’ve known a few science students who skipped college because they simply tested out of it, and none of them wound up being great scientists. And all of them were too narrow in their liberal-arts knowledge.

• Create an independent institution for academic study replication. The concept would require a group of politically balanced and esteemed scholars who, through repetition of experiments and observations in studies and reports, would evaluate the quality of research produced in higher education.

A good idea in principle, but who would want to spend their time replicating other people’s work. Further, I’m not sure that having just one institution, which would be overwhelmed replicating every academic student ever known, would suddenly create trust in published results?

• Conduct massive state-funded studies to test the value of a college degree. A 2012 study called “Academically Adrift” revealed that about half of students studied showed no improvement in critical thinking skills after college compared to before. Lukianoff is willing to bet that a control group of 18-22 year-olds working regular jobs rather than attending college would show the same, or perhaps even greater, improvement in their critical thinking faculties.

It’s easier just to teach critical thinking more intensively.  And, anyway, legislators aren’t going to conduct those studies for fear that it will show that college doesn’t improve critical thinking. Further, while fostering critical thinking is an important function of a college education, there are others as well—not just teaching facts essential for one’s career but giving one perhaps the only chance in life to be exposed to to the arts, literature, and science as a matter of fiat, and so awakening the love of areas to which one hasn’t been exposed.

This next one is, in my view, the most important suggestion Lukianoff makes. Of course I’m biased, but these principles have worked well at Chicago, and made us #1 in FIRE’s college free-speech ranking. Pray Ceiling Cat that our new President and Provost agree!:

• *****Presidents lead from the front:  Adopt some variant of the University of Chicago’s trifecta: The “Chicago Statement” that guarantees free speech on campus, with clear sanctions to deter those who disrupt others’ speech; the Kalven Report principle of institutional neutrality, which forbids the university and its units from taking official positions on issues of the day; and the Shils Report, which mandates that faculty hiring and promotion be based solely on academic merit and excellence in research and teaching. Presidents should endorse and promote institutional adoption of these principles publicly and conspicuously, and explain their roles and rationale. Once adopted, college Presidents should find opportunities to reiterate them loudly and often.

You can see a list of our University’s foundational principles here (with links to the statements), and the Shils Report is here.

• ***Faculty, get organized:  Although data shows that faculty do not necessarily want to protect speech they don’t like, it also shows that the ubiquitous administrative meddling in how faculty conduct classes and even how they conduct research makes them fear speaking freely and is very unpopular.  To recenter the core mission around faculty, academic freedom proponents, with the protection tenure provides, have started to organize. “University of Chicago Free” and Harvard’s “Council on Academic Freedom,” to name just two, each have about 50 faculty who have agreed to be publicly named.  They share ideas via Listserv, organize plans to enforce existing academic freedom principles, promote candidates for faculty committee positions, and advocate for hiring reforms, like the requirement that academic job listings contain a statement welcoming all viewpoints. A goal should be to make sure that alumni can designate their gifts to these groups.

Yes, well worth doing; in many schools faculty have enormous influence on policy, and, as it says, we’ve organized our own “University of Chicago Free” group where we can discuss freedom of speech and academic freedom issues in a small group of people dedicated, by and large, to the same principles.

• ****Teach free speech from day one:  Freshman orientation should introduce students to the principles underlying academic freedom, constitutionally protected free speech, viewpoint diversity, and truth-seeking, how these principles work in practice, and why a university cannot educate well without them. To institutionalize this orientation requirement, some suggest that faculty deans committed to academic freedom principles should take over orientation planning from administrators, who currently favor using it to mold morals and attitudes towards race, gender, sexuality, and other “identities” in ways that favor some groups’ rights over others, and encourage self-censorship. To help change course, FIRE offers a curriculum of orientation lessons and materials about free speech rights.

I absolutely agree with the comment above, and yet how many schools do this? I know of none.

• **Require free speech and academic freedom ombudsmen. Students and faculty need immediate recourse when their free speech rights are violated. Most campuses contain armies of DEI administrators eager to generate and encourage complaints alleging discrimination or other subjectively determined “harms” committed by fellow students or faculty members.  In contrast, when a student or faculty member’s free speech rights have been violated, to whom can the victim turn? Is there a single campus administrator anywhere whose job centers on the protection of student and faculty free speech rights? Let’s have some. “Turning administrators against administrators may not be a bad thing,” says Lukianoff.

I don’t know how many schools would allow for such a person; I believe we tried that here and it didn’t fly.  The “setting administrators against each other” is a hard thing to do!

• *Conduct annual campus climate surveys.  Such surveys would address attitudes towards free expression and reveal how free students, faculty and staff feel to state their views and engage in debate.  They would preferably be done in a way that would allow comparison across time and institutions. The questions in the surveys should be crafted to get to the bottom of the campus culture for debate and dissent, as well as the tolerance for faculty to pursue lines of scholarship and inquiry wherever they may lead.  FIRE’s survey results show that 63 percent of students nationwide think that the climate on their campuses prevents them from speaking freely. A majority of faculty report pressure to self-censor for fear of losing their jobs or undermining their reputations. If this data is accurate, then the campus climate is hostile to education.

A good idea, but doing it annually is a bit of work!

• ****Take away power from those who can punish. Currently, from a student’s or professor’s perspective, the process is the punishment. This should end.  When an accusation of discrimination or emotional “harm” is made against a faculty member, student or other employee, a summary judgement process should be in place, led by people who know the difference between protected speech and unprotected conduct.  If the accusation is against speech that is protected, then the case is summarily dismissed. To bolster this reform, universities should be required to give out a Miranda-type warning, so the accused knows that there is no obligation to comply with any investigation into protected speech. Commitment to this process should be written into a university’s speech and expression policy and in the faculty and student handbooks, which in many states are legally binding. Presidents and Provosts should assert boldly and often that punishment for unpopular or controversial speech will not occur at their institutions.

Being charged or investigated is a punishment in itself, and if there are no good grounds for that, the student should be left alone. When an investigation is warranted, everybody should have the same rights that apply in a court: lawyers, right to confront the accuser, knowing what the accusation is, and the finder of fact should not be the judge and jury. This was the one salubrious change that was made under the Trump administration, by Betsy DeVos. Sadly, Biden has taken away the rights of the accused, reverting to the previous form of Title IX that applied under Obama.

I have put asterisks next to the recommendations I consider most important, with the number of asterisks indicating greater importance.

h/t: Ginger K.