HOWARD GILLMAN
University of California, Irvine

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IN THE FIVE YEARS SINCE CONTEMPORARY DEBATES about campus free speech heated up, we have often seen campuses unprepared to manage events, protests, and controversies.

 

Early on campuses often struggled to articulate basic arguments for the defense of free speech and academic freedom. A number of institutions agreed to cancel events simply because the viewpoint of the speakers was controversial, leading to predictable lawsuits and eventual settlements in favor of the censored speakers. Campuses that had legitimate public safety concerns about certain events found that they nevertheless did not have transparent and neutral procedures for approving and regulating such events and were thus vulnerable to allegations of ad hoc viewpoint discrimination. A few campuses tried to manage challenging protests by creating absurd limits on the locations where free speech would be respected, leading to litigation that has now gone up to the Supreme Court. Well-organized community-generated riots on the Berkeley campus associated with a 2017 Milo Yiannopoulos event, combined with the post-Charlottesville efforts of Richard Spencer to visit campuses, led to unprecedented challenges relating to event security.

 

During these years many lessons were learned about how to be better prepared. Campuses disseminated clear statements about the importance of free-speech values and created opportunities to teach the campus community about free speech and academic freedom. They published clear statements supporting the presence of controversial speakers before particular incidents occurred, so that the school’s position wasn’t only expressed when matters became controversial. Increasing numbers of campuses devised and publicized transparent and neutral procedures for approving events and assessing the appropriateness of requested venues.

 

Many campuses deepened conversations about how to approach speech that many consider to be a threat to the campus’ obligation to create a non-discriminatory and inclusive learning environment. They realized that campuses also have rights of free speech and leaders must articulate and defend fundamental campus values other than free expression. They clarified what could and could not be done to ensure everyone’s physical safety. Some – although still not enough – put in place rules that prohibit disrupting the speech of others during authorized campus events. Some of us wrote books in the hope they might improve responses and elevate the debate.

 

Not every campus adequately prepared themselves to manage the kinds of issues that arose back in 2015, 2016, and 2017, but there was sustained attention on the basics: what can and can’t be done to control/allow controversial viewpoints, especially by public institutions; what are best practices for managing events and promoting safety; what should be done about disruption; how might we improve the overall quality of the debate, especially given legitimate concerns about the real impact of hateful, insulting, or marginalizing speech on vulnerable and historically disadvantaged members of the campus community?

 

It would be nice if taking these steps guaranteed that campuses should now be considered prepared. But, predictably, new challenges continue to arise. In some cases, the right responses to current challenges are well-understood and relatively easy to implement. In other cases, the right responses as a matter of constitutional law or free speech principles trigger very difficult political challenges for some university leaders. And we always have a new set of cutting-edge circumstances for which they are no obvious responses.

 

Consider the following relatively recent events. What would be the most appropriate campus response? Which are the easy cases, and which are the most difficult ones?

 

• A federal court has ruled (in Feminist Majority Foundation et al. v. University of Mary Washington) that the University of Mary Washington could have done more to protect students from online harassment by other students who waged an anonymous online campaign of violent, sexist abuse on the (now defunct) social media platform Yik Yak. How far should/must campus administrators go in reviewing and responding to claims by students that they are victims of online harassment? Is this really any different than reviewing and responding to claims of in-person harassment?

 

• Another federal court ruled (in Speech First v. Schlissel) that the University of Michigan could be dampening free speech on campus merely by creating a “bias response team” designed to help students who have experienced potentially prejudicial acts, even though the team had no authority to sanction anyone for free speech acts. At what point do campus efforts at mitigating experiences of prejudicial harm turn into illegal suppression of free speech rights?

 

• At the same time that the Department of Justice is intervening in lawsuits that criticize campuses for engaging in viewpoint discrimination, the Department of Education’s Office of Civil Rights re-opened a previously resolved investigation of Rutgers University, claiming that Rutgers may not have done enough to control or respond to anti-Zionist campus speech; the OCR justified re-opening in the case, in part, by expanding the definition of anti-Semitism to include certain criticisms of Israeli policy. If campuses allow speech that is experienced by some as discriminatory, will they run afoul of OCR? If campuses do not allow such speech, will they run afoul of the Department of Justice and/or federal courts? #RockHardPlace

 

• Stockton University launched an investigation of a doctoral student who had written provocative pro-Trump Facebook messages and who used a photo of President Trump as a Zoom background; intervention from the organization FIRE forced the university to drop all six charges that were being investigated. What expressive rights do students have with respect to Zoom backgrounds? Masks? What counts as a “disruption” of a classroom environment in the era of pandemic Zoom?

 

• Former Wisconsin Air Guard Lt. Col. Betsy Schoeller, who was a lecturer at UW-Madison, wrote a Facebook post on page for veterans reacting to the murder of US Army soldier Vanessa Guillen, after suspicion had fallen on a male soldier, by saying, “Sexual harassment is the price of admission for women into the good ole boy club. If you’re gonna cry like a snowflake about it, you’re gonna pay the price.” While she was trying to make a point about how deep-seeded the sexual harassment culture of the military was, her post led over a hundred thousand people to demand that she be fired. Under what circumstances (if any) should campuses punish faculty for expressions that generate outrage within the university (and broader) community? Is this a matter of academic freedom or free speech rights? What’s the difference?

 

• At UCLA business school professor Gordon Klein was placed on leave for an email rejecting his students’ demands for a “no-harm” final exam in light of national outrage over anti-Black police violence, which disproportionate impacted African American students; he wrote, “Do you think that your request would run afoul of MLK’s admonition” to not evaluate people based on skin color? Should administrators distinguish speech by faculty outside of the professional settings of the classroom (for example, on Facebook pages) from speech that occurs while they are exercising their professional judgment as faculty (for example, regarding the nature of the final exam)? Which (if either) deserves more protection?

 

• A faculty letter at Princeton, with over 300 signatories, demanded that the university respond to anti-Black racism by (among other things) “constitut[ing] a committee composed entirely of faculty that would oversee the investigation and discipline of racist behaviors, incidents, research, and publication on the party of the faculty,” with a yet-to-be-formed having the authority to determine “what counts as racist”. Should free speech and academic freedom principles be reconsidered in light of the long-overdue and (hopefully) historic reckoning being experienced on issues related to anti-Blackness and systematic racism? Should academic freedom protections apply only to those who do not engage in racist forms of expression? Who decides? On more general free speech grounds, who benefits more if we empower campus administrators, police chiefs, district attorneys, attorneys general, governors, and presidents to silence and punish people who engage in speech they consider dangerous: anti-racism protestors or their critics? What do we make of the claim that free speech is linked to white privilege?

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• Oberlin College lost a libel verdict in a case involving student protestors who accused a bakery owner of racism after a perceived overreaction to a shoplifting attempt; Oberlin’s eventual damages totaled $31 million. The verdict was, in part, based on a few circumstances where Oberlin faculty or administrators expressed some support for the students. As increasing numbers of students feel compelled to protest against anti-Blackness and structural racism, should campuses be careful not to provide rhetorical or practical support out of fear that they may be sued by people who believe they are being unfairly targeted? Must campuses make a preliminary independent judgment on whether student complaints are well-justified and only support the well-justified complaints?

 

These are some puzzles (some are easier than others). I will end by noting that we are also facing vital issues relating to voting and civic engagement in higher education during a pandemic, and on how activism can thrive during this time of social distancing.

 

Regarding the former: Nancy Thomas’ shop (at the Institute for Democracy in Higher Education) has done some wonderful work; their latest can be found at Election Imperatives 2020: A Time of Physical Distancing and Social Action.

 

On the latter, the University of California’s outstanding Center for Free Speech and Civic Engagement has been doing wonderful work, under the leadership of our executive director Michelle Deutchman; see, for example, our program on Supporting Student Activism.

 

​Howard Gillman will appear on the panel, "Student Speech and Administrative Responses," at the Campus Free Speech Battles Conference on September 24, 5:00-6:30 pm.