There is a classic horror movie trope in which a baby sitter gets a phone call asking if she’s checked on the kids. In a panic the sitter calls the police who trace the call and tell her that it came from inside the house.
The scenario works by turning the idea that you are locked inside a safe place on its head. Instead, you’re now locked in a house with a psycho who has been watching your every step and holding you hostage by threatening everything you hold dear.
The battle over freedom of speech on college campuses is following a similar trope. The threats are no longer coming from voices far removed from our nation’s institutions of higher learning, who use their column inches to stir up controversies in the hopes of drumming up readership. Those are easily fended off using decades of First Amendment jurisprudence. But now, the call is coming from inside the house. Over the past year it has become clear that some college students as well as many faculty are willing to curtail First Amendment rights in order to shield themselves from uncomfortable viewpoints.
In August, a study from Brookings Institution researcher John Villasenor found that a majority of college students are fine with silencing speech they find offensive, that a plurality believe that the First Amendment does not protect “hate speech,” and even that a sizable minority believes that violence can be used to stop a speaker they disagree with.
“The survey results establish with data what has been clear anecdotally to anyone who has been observing campus dynamics in recent years,” Villasenor concludes, “Freedom of expression is deeply imperiled on U.S. campuses. In fact, despite protestations to the contrary (often with statements like ‘we fully support the First Amendment, but…’), freedom of expression is clearly not, in practice, available on many campuses, including many public campuses that have First Amendment obligations.”
The results for troubling for a number of reasons, not the least of which is that students act as de facto arbiters of free speech on campus. We have tremendous power to govern the parameters of free speech because we, via proximity and our status as peers, have an opportunity to influence (and in some ways, police) our fellow students.
Unfortunately, we are willfully rejecting exposure to not just viewpoints that we disagree with, but from issues and topics that make us uncomfortable. In reality the best response to “hate speech,” which is rare, or ideas with which we disagree, which are common, is more speech and better ideas. How can we test the strength of our ideas or even articulate our view effectively if they are never challenged, discussed and debated?
Sadly, there are plenty of forces in higher education all-too-willing to lend students academic and legal cover for their drive away from free speech. Yale Law School professor Robert Post is the latest example, arguing in an extended Vox column that school administrators have the ability to determine who speaks on campus and what message they deliver based on whether the speech furthers the educational mission of the university. Post argues:
“[T]he entire relationship . . . between a university and its students is governed by the goal of education. Students are members of a university community dedicated to learning, and the university is entitled to enforce the obligations of community membership.
The limits on the university’s ability to regulate the speech of its students are therefore demarcated by the limits of its educational reach over students. Such limits do in fact exist. …
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.”
Post, fortunately, is wrong. HIs argument confuses things that are allowed (e.g. teachers laying down classroom rules to prevent it from descending into chaos) with things that are clearly unconstitutional (e.g. administrators barring a public speaker based on his views). The difference rests in Post’s mixing up of a university’s ability to regulate speech in professional settings (e.g. grading the quality of a student’s essay) as compared to other settings (e.g. using a student’s religious affiliation as a reason to flunk them).
As the Supreme Court has wrote in Healy v. James:
[W]here state-operated educational institutions are involved, this Court has long recognized “the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”
Yet the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, “[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”
The reason, as the Court later wrote in Keyishian v. Board of Regents, State University of New York, “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.”
But even if Post’s argument were constitutional, do we really trust university administrators to classify speech whether it is based on the school’s educational mission? Where does that line exist and are we comfortable re-defining it from one campus administration to another?
As students we should guard our rights carefully. Although it may feel simple to push back against a minority, such as white supremacists, whose views are far removed from our own, we cannot forget a history in which expanding rights for women and African Americans were once minority viewpoints. Our education, then, and our society generally, is enhanced by more speech, not when we willingly cede power to university administrators to determine on our behalf what opinions and viewpoints are deserving of being heard on college campuses.
If there is speech we don’t like, we must meet it with better speech. We must once against become comfortable in our own ability to self-regulate what viewpoints we engage with. And we must stop university professors and administrators who seek to take this ability away from us.
Photo credit: elPadawan. See more of his work HERE