How to Fix the Bias Against Free Speech on Campus

A recent investigation of eight abortion-rights supporters at American University, in Washington, D.C., offers yet more evidence that college administrators and diversity-and-inclusion bureaucratssome of whom undermine free speech as if their job duties demanded itneed new checks on their power.

This matter began in May, shortly after the Supreme Courts draft opinion in Dobbs v. Jackson Womens Health Organization leaked, prompting numerous law students at American to join an online chat about the impending diminution of abortion rights. One student fretted about whether conservatives would overturn other precedents conferring rights to buy contraception, or to marry a partner of the same sex or of a different race. What are they going to go after next? the student wrote. Griswold? Obergefell? Loving?

A classmate replied, As a Republican, I find it insulting that conservatives would be thought of as overturning peoples civil rights. After another classmate interjected, Can we shut the fuck up about personal opinions while people process this? the Republican student responded. I find it interesting how the call to silence our personal opinions happens after I defended my deeply-held religious beliefs and yet nobody has mentioned that same sentiment about the pro-abortion posts. The discussion was deeply offensive to both me and my Greek Orthodox faith, he declared. On a campus that adequately valued students free speech, thats where the matter would have ended, with everyone having expressed their opinion.

Instead, the offended Republican student filed a harassment complaint. Then the Office of Equity and Title IX at American sent a formal letter to eight students alerting them that all were under investigation for allegedly harassing a classmate on the basis of his political affiliation and religious beliefs, according to the Foundation for Individual Rights and Expression (FIRE), a free-speech-advocacy group that took up the accused students cause.

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Cases like this underscore the problem with administrators, often operating within or in conjunction with diversity, equity, and inclusion (DEI) bureaucracies, who investigate speech on behalf of any complaining party no matter how weak their underlying claims. Some of the most easily offended university students in America have become adept at characterizing any speech they dislike as if it creates an unsafe, discriminatory, or hostile climate, or else constitutes harassment or even violence; and many of the accused find that being investigated in such cases is a punishment in itself.

Thats why, last month, I proposed a way to rein in such investigations: Universities should empower their faculty to check administrators and DEI staffers who undermine freedom of speech. If professorsor perhaps representatives chosen by professorscould sanction and, in extreme cases, terminate anyone who violates First Amendment rights or free-expression policies, administrators would have a powerful new incentive to avoid speech-chilling excesses. Administrators and DEI officials can, of course, be disciplined or fired by higher-ranking university bureaucrats, but they are essentially unaccountable to the scholars and students whose expression they are stifling. Faculty members are more likely than bureaucrats to understand that free speech is essential to academic freedom. On many campuses, when administrators have infringed on faculty or student rights, professorsespecially law professors steeped in First Amendment lawhave been unafraid to speak up.

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A spokesperson at American argued in an email to me that universities are legally required to review all discririmination complaints and added that during the fact-finding process, no adverse action is taken by the university against any individuals. He went on to say that Americans Office of Equity and Title IX reviews only those matters related to a viable claim of discrimination and does not investigate matters related solely to disagreements based in speech.

But Alex Morey, a FIRE attorney who wrote to the university on the accused students behalf, lambasted Americans approach. This is absurd, he stated. Theres nothing even approaching harassment or discrimination in the chat. American cannot let its process for investigating actual discrimination and harassment be weaponized to investigate students opinions, but thats exactly whats happening. One of the accused students, Daniel Brezina, was similarly incredulous. I cant believe American is investigating us for having a frank discussion about abortion access, he said in a statement released by FIRE. This is going to have a massive chilling effect on honest discussions at the school. What good could possibly come of that? The investigation dragged into July before the students were told that they were not ultimately found responsible and would escape punishment.

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When students can be investigated on the thinnest of pretexts and risk punishment for poorly defined transgressions, the safe approach is to self-censor rather than engage in exchanges on any sensitive subject. College administrators are seldom, if ever, punished for violating free-speech rights, even as they face significant incentives to expand the size and scope of their bureaucracies and to placate the aggrieved to avoid protests or negative publicity.

In recent weeks, Ive discussed my proposed solution to this problem with a variety of people in higher educationsome of whom, I should note, reject it entirely. I must disagree with the grounding premise that DEI administrators are serving to squash free speech and expression of University faculty members, Maria Dixon Hall, the chief diversity officer at Southern Methodist University, told me by email, noting that more senior administrators are typically calling the shots. She added, Inclusion is challenging to operationalize and enforce. But unfortunately, DEI Officers are made scapegoats by those on each side who feel we have too much power or not enough.

I say that the Princeton professor Robert George has it right. In an email to me, he noted that universities have rules, some of which protect free speech. University officials who violate those rules by trampling others free expression should not be exempt from punishment, he suggested.

George wrote,

Their rule-breaking should be treated no differently than the rule-breaking of faculty members, students, or anyone else in the community. Whats more, freedom of thought, inquiry, and expression are so foundational and central to the mission of universities that violations of peoples rights in this area need to be treated as extremely serious offenses subject to sanctions in line with those typically imposed on students and faculty for plagiarism, for example, or other serious acts of academic dishonesty.

At present, few institutions, if any, recognize overzealous speech investigations as serious transgressionsincluding in instances when courts rule that college administrators violated the legal rights of faculty, students, or members of the public.

Even among college professors who find the status quo unsatisfactory, there are doubts about whether empowering faculty to discipline administrators is a viable or optimal solution. Michael Behrent, a history professor at Appalachian State University, in North Carolina, believes diversity is an important goal, and that diversity officials can be useful, but that their current approach does result in efforts to undermine academic freedom. I think your basic idea is correct, namely, that there should be a mechanism for holding administrators accountable so that they respect academic freedom and free speech rights, he told me in an email. The problem is that what you propose is almost completely unrealistic in the current university environment in the US Its virtually inconceivable to imagine a modern university that would grant faculty the kind of authority you describe. I cant even imagine such a proposal lending itself to discussion. It would be rejected outright. This is not reflective of your proposal, but of the current situation in higher education.

Others feared that if my proposal were put into practice, faculty members might ally with administrators against free speech, or fail to protect free speech. Professors have incentives to avoid antagonizing the university brass. DEI officials, after all, are part of a sprawling administrative bureaucracy that, as Dan Eisenberg, a University of Washington professor, notes, has substantial powers in many different areas of campus, such as deciding where money goes to support raises, new hires, teaching assistants, research, retention, and lab space. If an administrator lies, cheats or steals, I might not want to go after them to the fullest extent the system permits, Eisenberg explains. I might get the particular administrator to have to publicly admit their wrongdoing and face some consequences, but if they or their allies stay in power, I might lose more over the long term. Many academics spend decades at the same institution.

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Any effort to empower scholars against university bureaucrats would need to take account of those potential pitfalls. But all thats required to test out my approach is one institution willing to experiment, probably over the objection of administrators. In California, where I live, reform of the flagship state university system could be achieved by state legislators, the University of California Board of Regents, or a ballot initiative. I would urge the UC system to create an Academic Freedom and Freedom of Speech and Expression Commission, which might be composed of, say, 15 First Amendment experts chosen by the law faculties of UCLA, UC Berkeley, UC Hastings, UC Irvine, and UC Davis.

Any time administrators wanted to open an investigation into the speech of a faculty member or student based on someone elses complaint, they would need approval from the commission. Members would analyze the speech in question to determine if the speecheven if accurately described by the complainantwould nevertheless be allowed under the First Amendment or university policy. If so, the matter ends there, and administrators are denied permission to act. As Morey told me, When its painfully obvious that the only issue is a matter of students exercising their expressive rights, the only appropriate response is to stop any proceedings lest they chill speech. Even notifying students theyre being investigated for protected speech can chill them from expressing themselves in the future.

If this approach works for the UC system, other universities might well mimic it. The commission could also review complaints from faculty or students who allege that University of California administrators or staff abrogated their freedom of expression or academic-freedom rights, with any faculty member serving on the commission recusing themselves on any matter that originates on their home campus to safeguard against perverse incentives. Administrators would be subject to investigation and sanction for violating the law or policy, enjoying due process and appeals rights as strong as whatever they offer students.

Of course, any public-university system could try a similar approach. And any private college could experiment with variations adapted to its size and needs. I wish several institutions would try different experimental variations, because new threats to intellectual freedom keep emerging.

At the University of Washington, for example, the computer-science professor Stuart Reges is suing administrators, alleging that they violated his constitutional rights by encouraging faculty to include land acknowledgments in course syllabi and then punishing him when they disagreed with the viewpoint that he expressed. (Reges, who views land acknowledgments as empty and performative, wrote, I acknowledge that by the labor theory of property the Coast Salish people can claim historical ownership of almost none of the land currently occupied by the University of Washington.) If a court finds in Regess favor, wouldnt it be better if representatives of the faculty had some way to sanction the relevant administratorsas compared with a system where administrators can violate a persons rights without themselves suffering any professional consequences?

Im not suggesting that sanctioning misbehaving administrators and diversity bureaucrats should be a scholarly communitys only defense against excessive investigations. The academics whom I consulted proposed a range of alternative or complementary measuressuch as faculty unionization and the careful cultivation of ties with the press and First Amendment lawyersby which professors can at least protect their own academic freedom and at best promote a broader culture of free expression.

Do professors want to be newly empowered, or continue ceding control over the university to administrators? That, to me, is the biggest question about the approach I propose: not whether faculty could eventually win a fight to wield some check on free-speech violations by administrators, but rather, whether faculty care enough to claw back power. When it comes to free speech, do enough members of the professoriate care to do the work?