Lawmakers, stop enabling higher ed’s assault on free speech

Just before Christmas, the University of Oregon mounted an exceptionally unhinged assault on free speech. If you missed it, don’t feel bad. It got lost amidst the holiday cacophony and, in any event, it was only the latest in long a series of such eye-popping assaults on free expression over the past few years.

What happened? Tenured law professor Nancy Shurtz, a white woman, hosted an off-campus Halloween party at which she dressed up as a black man.

{mosads}In response to complaints, the University of Oregon launched an investigation, ultimately issuing a report suspending the professor on the grounds that her costume constituted “discriminatory harassment.” That the professor actually intended (however clumsily) to protest racism was irrelevant.  

The University of Oregon insisted that federal law required it to act as it did, arguing in its report:

“The existence of a racially hostile environment that is created, encouraged, accepted, tolerated or left uncorrected by a recipient also constitutes different treatment on the basis of race in violation of title VI.”

The report elaborated:

“The law school environment has become hostile, with discussions and strong conflicts of opinion taking place within the classrooms and on the law school social media pages.

“The reactions to the event and the students’ conflicts have required other teachers to take time from lessons to address the Halloween incident. The open discussions in class have also resulted in racial hostility between the students.”

UCLA law professor Eugene Volokh took to the Washington Post to explain the practical significance of Oregon’s decision:

“If you say things about race, sexual orientation, sex, religion and so on that enough people find offensive, you could get suspended (and, following the logic of the analysis) even fired.

“This can happen even to tenured faculty members; even more clearly, it can happen to anyone else. It’s not limited to personal insults. It’s not limited to deliberate racism or bigotry.”

Nothing here is new or surprising. Universities have countenanced and even encouraged a sustained assault on free speech and inquiry.

The Foundation for Individual Rights in Education has flagged scores of examples, such as the University of Michigan’s determination that anything can be a “bias incident” if it “harm(s) another because of that person’s membership in a classification” or is thought to mock someone’s “language,” “accent,” “dress,” or “geographic origin.”  

[Eugene Volokh] At the University of Oregon, no more free speech for professors on subjects such as race, religion,… https://t.co/ewqTSO8Hku pic.twitter.com/7hVG963nk2

— VolokhC free speech (@VolokhSpeech) December 26, 2016

Look, private entities have the right to conduct their business as they see fit. If a given college wants to cultivate cosseted, emotionally fragile ideologues, so be it. And if students are choosing that experience, well, that’s life in a free nation. But, as college presidents are fond of telling elected officials, higher education is not just a private transaction. At public colleges, the public is subsidizing tuition and providing direct support.

A fortune in federal grants and student loans helps students to foot the bill at both private and public institutions. Washington devotes tens of billions annually to fund university research, with more than a third of that money helping to underwrite university operations by paying for “indirect costs.”  

Now, it’s a mistake for politicians or bureaucrats to regard this spending as an excuse to micromanage campuses. It’s not too much to ask, however, that colleges and universities which draw on public support actually serve as repositories of free inquiry and free thought.

Here are three ways that state or federal policymakers might help on that score:

1. Comprehensive Civil Rights

The incoming officials at the Department of Education should take a long, hard look at where guidance out of the Office of Civil Rights has encouraged risk-averse campus officials to crack down on free speech by overstating what federal law actually requires.

Indeed, the incoming assistant secretary for civil rights should take care to see that the Department of Education is paying due heed to the entire corpus of civil liberties — including free speech, freedom of religious exercise, and the assurance of due process.

2. Demand Assurances, Deliver Consequences

State officials should feel comfortable demanding assurances from university leaders that public funds are supporting institutions committed to free inquiry and not forced indoctrination.

And they should be unapologetic about redirecting state funds to institutions which respect that distinction. Better yet, they may want to consider cutting back on direct state support to institutions and instead fund higher education by empowering students to use funds at the institution or program of their choosing.  

3. Legislative Action

As Congress works this year to reauthorize the Higher Education Act, lawmakers should consider a simple amendment that would make any institution ineligible for federal research funds if it has in place any policies that stymie free speech or thought.

After all, colleges may have the right to set the norms that they wish, but there’s no cause for American taxpayers to subsidize research at institutions which are unable to commit to the fundamental precepts of scientific inquiry.

None of this constitutes an adequate response to the Orwellian goings-on at the University of Oregon and elsewhere, but it’s a start.

Frederick M. Hess is director of education policy studies at the American Enterprise Institute and a contributor to The Hill.

The views expressed by contributors are their own and not the views of The Hill.