Secretary DeVos Should Remind Colleges of Their First Amendment Obligations

devos-education-protestAdministrators at New York’s Rensselaer Polytechnic Institute are engaged in a wholesale crackdown on student speech. RPI employees have been caught on tape removing signs criticizing the administration and sanctioning students for engaging in speech protected by the school’s own policies. RPI has brought charges against students for peacefully protesting the school’s recent black-tie fundraiser, even accusing one student of illegally “operating a business” by distributing fliers critical of Rensselaer. This episode is only the latest indignity in a year that has already seen the assault on campus speech play out at Middlebury, Evergreen State, and UC-Berkeley, and in a host of less famous instances.

Unfortunately, the evidence suggests that this kind of institutional assault on speech has become commonplace. In a comprehensive review released last December, the Foundation for Individual Rights in Education (FIRE) reviewed 449 higher-education institutions — 345 public and 104 private — and found that 92 percent had policies prohibiting certain categories of constitutionally protected speech.

These now-familiar policies fly in the face of an established body of jurisprudence that sets forth the rights of students on college and university campuses. As the United States Supreme Court explained in Healy v. James (1972), “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…state colleges and universities are not enclaves immune from the sweep of the First Amendment.” While private institutions are not similarly bound by the First Amendment, most — including RPI — promise to respect freedom of expression and academic freedom even as they have adopted restrictive speech codes. (In several cases, courts have held that private institutions are legally bound to honor such promises.)

Perhaps more importantly, the Higher Education Act (HEA) has made explicit the commitment to free speech and free inquiry that’s expected from any higher-education institution that chooses to accept federal student aid (i.e., the overwhelming majority of all colleges and universities). Indeed, Section 112 of the HEA, “Protection of Student Speech and Association Rights,” holds, in part:

It is the sense of Congress that no student attending an institution of higher education on a full- or part-time basis should, on the basis of participation in protected speech or protected association, be excluded from participation in, be denied the benefits of, or be subjected to discrimination or official sanction under any education program, activity, or division of the institution directly or indirectly receiving financial assistance under this Act, whether or not such program, activity, or division is sponsored or officially sanctioned by the institution.

Section 112 was first adopted two decades ago, during the 1998 HEA reauthorization, as a response to a number of private colleges’ and universities’ banning all single-sex student organizations and restricting student assembly. The amendment passed the House on a 414–4 vote and the Senate by 96–0. Amendment sponsor Representative Bob Livingston explained that the new section would “put Congress on record defending the rights of students.” Section 112 was expanded in 2008 to its current form through amendments offered by Senator Ted Kennedy (D., Mass.), the chair of the Senate Education Committee.

Yet today it seems that many college administrators choose to ignore or are unaware of their statutory obligations.

Secretary of Education Betsy DeVos should remind them. A useful place to start would be a “Dear Colleague” letter clarifying the obligations that colleges have in regard to free speech and free association on campus. Secretary DeVos could point institutions to the Supreme Court’s ruling in Healy v. James, and to other rulings such as Tinker v. Des Moines Independent School District (1969) and Shelton v. Tucker (1960). On the matter of academic freedom, DeVos could direct them to the Court’s rulings in Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967).

She should remind schools of court precedent regarding overbroad speech codes—such as Doe v. University of Michigan (1989), in which a federal district court ruled the University of Michigan’s harassment policy to be unconstitutionally overbroad due to “punishing speech or conduct solely on the grounds that they are unseemly or offensive.” DeVos would do well to specifically note how often schools’ codes are overturned when challenged, such as in DeJohn v. Temple University (2008), in which the Third Circuit Court struck down Temple University’s sexual harassment policy, finding it “sufficiently broad and subjective” and concluding that “the policy provides no shelter for core protected speech.” She should make the same point regarding precedent that makes clear the problematic nature of campus “free-speech zones.” Indeed, to its credit, the Department of Justice has already filed statements of interest in two ongoing cases involving “free-speech zones,” holding that such restrictions on public campuses are unconstitutional.

For those unfamiliar with the ins and outs of higher education, such a response may seem like weak tea. It’s not. During the Obama administration, informal guidance was repeatedly used, to remarkable effect. Indeed, under Obama, it was routinely used as a way to sidestep statute and the will of Congress — in some instances, such as with Title IX, such guidance reimagined and reinterpreted existing statute. Even so, the compliance mentality and risk aversion that pervade higher education meant that these “non-binding” suggestions wound up having a remarkably outsized impact.

In this case, however, no creative reinterpretation or executive-branch overreach is required. All DeVos’s department has to do is remind colleges and universities of their obligation to abide by federal statute and Supreme Court precedent, clarifying how Congress and the courts have long viewed students’ rights. DeVos can clearly signal to colleges and universities that institutions that choose to receive federal funds will no longer be able to abridge statutorily protected rights with impunity, and that the department will take seriously the dictates of judicial precedent. Faced with such a reminder, there’s a good chance that a significant number of institutions will conveniently rediscover their commitment to free speech and free association.

From - AEI, the American Enterprise Institute - by Frederick M. Hess, Grant Addison

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