Why don’t universities protect freedom of expression? : News : The Independent Institute

In 2017, Georgetown University revised its Speech and Expression Policy to reflect an institutional commitment to free speech on campus. The new policy committed the University to providing students and faculty with “the greatest possible latitude to speak, write, listen, challenge and learn.” The policy specifically stated that the speech “may not be suppressed because the ideas advanced are considered by some or even most members of the University community to be offensive, reckless, immoral or ill-conceived”, and that the University undertook “a solemn responsibility not only to promote a lively and fearless freedom of deliberation and debate, but also to protect that freedom when others attempt to restrict it.

That same year, Loves Saxa, a campus group that advocated marriage as “a monogamous and permanent union between one man and one woman”, was accused of being a hate group because of this definition and threatened defense. In 2019, the acting Secretary of Homeland Security, who had been asked to provide an address at law school, was repeatedly told by protesters and forced to leave without delivering his speech. The law school administration took no action to arrest the protesters. In 2021, the dean of law school law was fired an assistant professor for what he described as an “off-” conversation “in which she made” objectionable statements regarding student evaluation blacks”. He placed another assistant professor on administrative leave to simply listen to those comments without disagreement.

Last week, Ilya Shapiro, the new director of the law school’s Center for the Constitution, voiced his thoughts on President Biden’s decision to appoint an African-American woman to the Supreme Court on Twitter. In the abbreviated language needed to fit his comments into 280 characters, he said: “Objectively, the best choice for Biden is Sri Srinivasan, who is solid prog&v smart. Even Identity Politics has the advantage of being the first Asian American (Indian). But alas, it doesn’t fit into the latest hierarchy of intersectionality, so we’ll have fewer black women. Thank heaven for small favors? In a follow-up tweet, he said, “Because Biden said he was only considering [sic] black women for SCOTUS, its candidate will always have an asterisk attached.

The Dean of Georgetown Law responded to those tweets with a campus-wide email in which he said Shapiro’s “tweets suggestion” that the top Supreme Court nominee couldn’t be a woman. black color and their use of degrading language are appalling. The tweets contradict everything we stand for at Georgetown Law and undermine the culture of fairness and inclusion that Georgetown Law builds every day. Three days later, he posted a second campus-wide email stating, “Ilya Shapiro’s tweets are contrary to the work we do here every day to build inclusion, belonging and respect. of diversity. . . . I am writing to inform you that I have placed Ilya Shapiro on administrative leave, pending an investigation into whether he violated our policies and expectations regarding professional conduct, non-discrimination and anti against harassment, the results of which will inform our next steps. Pending the outcome of the investigation, he will remain on leave and will not be on campus.

It would be hard to find an institution whose principles and actions are more misaligned. Yet Georgetown is far from unique in this regard. Almost every major university makes grandiose commitments to free speech. Few honor these commitments in default. Why?

Contrary to right-wing rhetoric, university presidents, deans and administrators are not woke ideologues. The answer is not ideology. These are incentives.

University administrators receive no reward for upholding abstract principles in the face of student outcry and protest. Their motivation is to quell dissent as quickly as possible, which usually means soothing protesters. Standing on Principle tends to exacerbate the conflict by provoking more vocal student protests and generating negative media coverage. Those who successfully stall the disruption receive praise from the university administration. (Indeed, that’s precisely what happened in Georgetown when the dean fired and disciplined assistant professors for their speeches last year. The university’s president issued a campus-wide message praising his “decisive actions [as] essential and consistent with the philosophy and ideals we strive to uphold in Georgetown. ”) They receive no personal return for violating the institution’s abstract commitment to free speech.

Consider the position of the Dean of Georgetown. He faces students who use social media to stir up outrage and skip class in protest. The Washington Post and other outlets picked up the story. There is a real risk that things will escalate and disrupt the operation of the law school. His strongest motivation is to make this problem go away. How can this be done? By placating students or championing the University’s commitment to free speech on campus?

How can it be surprising that, in this case, the Dean spent more than an hour trying to appease the students? Reiterating his shock—”[a]gain, I was appalled to see the tweet. I tried to move as fast as possible. . . within hours of posting the tweet, I made my statement. – sympathizing with the students – “it’s painful for all of us, but I know how painful and awful it is for you, and I know what a terrible burden it is,” – and congratulating them for their input – “I appreciate you taking the time to speak, I appreciate your insights, I’ve heard a lot of things today that I’m not just going to reflect on, but I’m going to be going forward, and I will dialogue with you on what we are doing.

What personal harm does the Dean suffer by violating the University’s speech and expression policy? His actions were criticized as a violation of academic freedom in a public letter signed by over a hundred scholars. Officials from the Foundation for Individual Rights in Education published a column in the Washington Post denouncing its action as a violation of free speech. These actions may make authors and signatories feel good about themselves, but they do not impose any constraints on the Dean personally.

Universities that superimpose an abstract commitment to free speech onto an incentive structure that rewards suppression of offensive behavior are making the classic managerial mistake of “hoping for A, but paying for B,” which invariably produces B. For the abstract commitment to free speech to have practical effect, universities must change their incentive structures. Those who have the responsibility to uphold the commitment must either be rewarded for doing so or punished for not doing so.

Fortunately, these incentives can be changed. The first requirement is to add the following sentence to the university’s speech policy: The University will summarily dismiss any allegation that an individual or group has violated any University policy if the allegation is based solely on the individual or group’s expression of religious, philosophical, literary, , artistic, political or scientific. This makes the university’s abstract commitment to freedom of expression defined and explicit. Think of this as a “safe harbor” provision for free speech.

University policy binds the institution. It creates a contract between the school and its students and teachers that is legally enforceable.

The second requirement is to create a pro bono legal group that will sue any school that violates the safe harbor provision. This allows parties targeted for their speech to sue for breach of their contractual rights.

The prospect of such lawsuits does not alter the incentives of university administrators. But it changes a party’s incentives; university advisor. University lawyers are not interested in winning lawsuits against the university. They are interested in preventing lawsuits from being brought against the university in the first place. The combination of the safe harbor provision and the realistic threat of legal action for its violation may motivate university attorneys to restrict the conduct of administrators. They could require that allegations of harassment be reviewed by a member of the attorney’s office who knows how to distinguish speech complaints from actual harassment. They will almost certainly insist on revising the university’s anti-harassment training to emphasize that students and faculty should not file complaints based solely on the content of the point of view expressed. But whatever action they would take, they would tend to give the college or university’s abstract commitment to free speech real practical effect.

The fear of being sanctioned by universities for defending unpopular ideas does not stem from a lack of institutional commitment to freedom of expression. Almost all universities make such commitments. The fear stems from the fact that no university administrator has the incentive to honor the commitment when it counts. Adding a disclaimer to university policy and organizing a pro bono law firm dedicated to protecting free speech on campus – what the Foundation for Individual Rights is all about. doing – can change that incentive.

Administrators will not act against their own interests simply to uphold an abstract principle unless there is some cost to not doing so. The threat of damages may be this cost. It’s a way to ensure that universities that make grand commitments to free speech put their money where they say it does.