Could a new GOP bill save free speech on campus?
This summer, Representative Greg Murphy (R-NC) introduced the Campus Free Speech Restoration Act, designed to improve free speech in American universities. Murphy’s Bill defines “speaking activities” to include peaceful assembly, speaking and listening, and protects them from “improperly restrictive” institutional incursions, such as voice codes, bias response teams and “zones of freedom of expression”.
It’s sad that such legislation is needed, but college is now a place where free inquiry, freedom of speech, and intellectual growth are in jeopardy. Polls show that many professors and students now censor themselves for political reasons. Punitive progressivism has become dogma, and waves of harassment policies, zealous students, and ideological administrators chill dissent. Laws like Murphy’s can help, but understanding the details is essential.
Public universities, legally subject to the First Amendment, get away with unconstitutional practices when the authorities do not respect and enforce the law. This is because no constitutional provision applies by itself.
To give effect to it, an injured party must sue a school. But after filing a complaint, this party often endures years of “right to the law” – blockades, appeals, trials, new trials and dismissals – which public universities, with taxpayer and lawyer funds at their disposal, welcome. while yawning. Too often, individual lawsuits against universities are just pebbles thrown against the citadel.
Murphy’s Bill addresses this problem with two innovations. First, it allows the Department of Education to make Federal Title IV funding conditional on First Amendment compliance in public schools.
While the bill does not specify how this would be implemented, it could easily appear alongside other long-standing non-discrimination demands. The condition could also be the subject of an annual independent certificate of compliance, to be filed with the Ministry of Education. Certification would require schools to document their efforts to protect freedom of expression, record where and when it has been threatened, and list measures taken to prevent such events from happening again.
Second, the bill creates a new position in the Department of Education to oversee the status of free speech on campus and enforce the First Amendment, regardless of lengthy and costly litigation. This official would investigate credible complaints of First Amendment threats and be authorized to impose penalties.
While the bill is a good start, practical questions remain. Given that the Department of Education’s finding of non-compliance would remain subject to review by a court, does the new federal review of the bill simply impose an additional layer of bureaucracy on complainants? And: won’t this new civil servant necessarily follow the policy of the administration in power? Also, given that schools often give in soon after a complaint is filed by withdrawing a contested policy – only to reintroduce it at a later date – how will the law prevent a rollback?
Changes to the bill could explain some of these concerns. Legislation could further empower the department to conduct random campus audits to ensure a school’s culture, policies and enforcement practices are compatible with the First Amendment. The new office does not need to passively wait to receive complaints, but rather to proactively inspect the premises.
The bill could also allow the official to ban the problematic policy or action where a complaint constitutes a reasonable case of probable violation. The burden of proof at this early stage would be intentionally low: in favor of the complaint and freedom of expression.
This would help level the playing field in law, signal the importance of the First Amendment in academia, and recognize the reality that higher education institutions no longer deserve the benefit of the doubt on speech issues.
Finally, the bill should require the Department of Education to notify the regents or administrators of a school of any complaint, investigation or injunction, as well as the associated costs. The board can then contact state lawmakers to deduct these costs from the school’s annual budget – which would, of course, be reimbursed or reallocated if a final judgment exonerated the school.
Taken together, these provisions would ensure that the institution bears the cost of likely constitutional violations – not the individual and not the taxpayers. With time and a bit of tinkering, Murphy’s legislation could be a big step towards saving America’s higher education.
Teresa R. Manning is the Policy Director of the National Association of Scholars. Adapted from City Journal.