DEVLIN: What Congress Can Do To Protect Free Speech on College Campuses

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Tuesday, July 24, 2018


College conservatives have spent the last three months recuperating from a brutal battle defending their right to free speech against the leftist monolith that is the American college campus. They’re ready to do it all over again in the 2018-2019 academic year, but Congress can, and should, act to support students who challenge university administrations to uphold its moral and legal obligations.

At first, a conservative argument for government intervention into matters of free speech on college campus seems awfully hypocritical. Many university administrators, conservative commentators, and think tanks have forcefully argued against government getting its grubby hands on matters of free speech on college campuses, even in front of congressional committees. I used to agree with this position because I feared government intervention would lead to more time, place, and manner restrictions on speech or that government would decide to create something similar to a protected classes system. Both of these policy prescriptions could be used to suppress more speech, and as Supreme Court Justice Louis Brandeis wrote in his opinion of Whitney v. California, “the remedy to be applied is more speech, not enforced silence.”

The drama that unfolded in 2017 between UC Berkeley and my club, the Berkeley College Republicans, turned heads in the highest levels of government. In response to repeated violations of my club’s constitutional rights, President Trump tweeted:

I share the president’s frustration and concern, but stripping all federal funds from universities is too politically unpalatable to gain congressional support because most of those funds help students pay tuition. However, there are legislative alternatives that would not restrict speech or leverage federal funds that subsidize student’s cost of education.

In 1941, Executive Order 8807 authorized the federal government to subcontract research projects to universities. This waned the government’s extensive control over scientific research and helped the government scrap wasteful projects.

To this day, universities fiercely compete for federal research grants. The American Enterprise Institute reports “Washington spent almost $130 billion in fiscal year (FY) 2015 on R&D” from a host of government agencies.  “Nearly $38 billion of which went to higher education institutions,” the report reads, and these “taxpayer-funded research grants constitute some of the most sought-after dollars in higher education.” Congress has the authority to target these research funds to ensure college administrators are upholding their student’s constitutional rights.

In 2017, the Foundation for Individual Rights in Education Spotlight survey analyzed 450 colleges and universities across the country and found that 40 percent of colleges “maintain speech codes that substantially infringe on constitutionally protected speech. Of the public colleges surveyed, which are bound by the First Amendment, fully one-third had written policies banning disfavored speech.”

AEI took the thirty universities that received the most federal research funding in 2015 and added FIRE’s 2017 free speech rating to the data set. The results are beyond alarming.

Even though FIRE’s 2018 Spotlight report found a six percent decrease in red-light rated schools, suppression of free speech on college campuses remain an epidemic. 32.3 percent of schools still have “speech codes that clearly and substantially restrict freedom of speech;” another 59 percent of schools surveyed got a yellow-light rating, which means fewer than 10 percent of schools’ free speech policies earned a green-light rating.

The legislation’s demands would be relatively simple. A university is ineligible to receive federal research funds if:

  1. The university has an established free speech zone. Free speech zones are used to restrict the exchange of free speech to an unreasonably small, specific area on campus.
  2. The university fails to recognize Byrd’s Law concerning Constitution Day, or punishes students for lawfully celebrating Constitution Day. Every year on September 17, “Each educational institution that receives Federal funds” is required to host an “educational program” on campus about the Constitution. A Fox News op-ed from 2010 described how colleges now at the forefront of the campus-free-speech conversation, including UC Berkeley, celebrated Constitution Day. Oh, how the times have changed. On Constitution Day in 2016, three individuals were arrested at Kellogg Community College in Michigan for handing out copies of the Constitution.
  3. The university fails to assure it will not hamper constitutionally protected speech or engage in political viewpoint discrimination in the allocation of funds or public-forum facilities to researchers, university departments, affiliates, or student groups.
  4. The university fails to have a readily accessible, online hate crime portal with a reasonable response period. When speech meets the legal classification of genuine and targeted harassment, it is no longer constitutionally protected. Providing students with a resource to submit complaints in order to redress grievances and educate themselves on what is and is not constitutionally protected speech is vital, especially as hate incidents on campus continue to increase.

For nearly two years, even in the midst of threats, violence, and riots, I have held off on encouraging government intervention. Now, it’s time for Congress to make universities obey these simple demands to ensure equal protection for college conservatives exercising their constitutional rights.


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About Bradley Devlin

University of California, Berkeley

Bradley Devlin is a student at the University of California Berkeley studying Political Economics and serves as the President of the Berkeley College Republicans.

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