French: Progressives Are Now Arguing that the First Amendment Is Profoundly Limited on College Campuses

There are a few ways to respond to radical demands for campus censorship. One is rather simple: Enforce decades of constitutional jurisprudence, and clearly signal to disruptive protesters that lawbreaking is grounds for serious discipline. Follow the law and the debate about free speech won’t end, but the wave of shout-downs will pass. Students, after all, don’t want to sacrifice their shot at a degree to stop, say, Ben Shapiro or Charles Murray from speaking. As a general rule, they’ll do what the college allows them to do, and nothing more. Then there’s the opposite response: A number of progressive administrators, professors, and activists (over the objection of more liberty-minded colleagues) are seeking to redefine and ultimately eliminate the very concept of a “marketplace of ideas” on college campuses. They argue that the ultimate mission of the university is education, not providing a platform for any crazy idea someone wants to share, and that school administrators should thus have the right to determine who speaks on campus and how they speak based on whether the speech in question furthers this educational mission. That, in a nutshell, is Yale Law School professor (and former dean) Robert Post’s argument in an extended piece in Vox. To justify an administrative role in determining not just who speaks on campus but what they are permitted to say, Professor Post says this: “The entire purpose of a university is to educate and to expand knowledge, and so everything a university does must be justified by reference to these twin purposes. These objectives govern all university action, inside and outside the classroom; they are as applicable to nonprofessional speech as they are to student and faculty work.” This is remarkably similar to the arguments made to my colleague Charlie Cooke in a recent and heated debate at Kenyon College. If speech is so offensive, hurtful, or maybe just plain wrong that administrators believe it would impair the educational mission of the university, then, the thinking goes, they should have the power to restrict that expression. There are multiple problems with this argument, but I’ll focus on two: It’s both unlawful and absurdly impractical. First, the law. When analyzing a free-speech case, the first question you need to ask is, “Who is speaking?” In the context of a public university, there are usually three relevant speakers: administrators, faculty, and students. Administrators have the general ability to define the mission and purpose of their schools’ academic departments. They can mandate, for example, that their science departments operate within the parameters of the scientific method and on key issues apply accepted scientific conclusions. But this power isn’t unlimited. They can’t lawfully decide, say, that evolutionary biology will be taught only by atheists. In that case, the speech of the administrators collides with the First Amendment rights of the professors, and the professors win. Similarly, while professors have the right to shape and control their classroom (some permit profanity and insults while others sharply limit discussion) and even have the right to require students, within the classroom context, to defend views they may find abhorrent, their control is not absolute. They can’t mark down conservatives for being conservative or silence Christians for being Christian. They can grade ideas and expression for academic rigor, but they cannot discriminate purely on the basis of ideology or faith. Just as you can’t “punch a Nazi,” you can’t “flunk a Nazi” if their work meets the standards of the class. One of my old cases is instructive. Shortly after California voters passed Proposition 8, a ballot measure that defined marriage as the union of a man and a woman, a speech professor at Los Angeles City College walked into his class and declared that any person who voted for Proposition 8 was a “fascist bastard.” One of his students, a young man named Jonathan Lopez, decided to respond in a speech assignment. Lopez was asked to deliver a speech on “the topic of his choice,” and he chose to discuss and define his Christian faith. In the course of discussing the fundamentals of his faith, he briefly addressed marriage. His professor stopped his speech, angrily confronted Lopez, and then dismissed the class. Rather than grade his speech, he wrote on the evaluation paper, “Ask God what your grade is.” The professor’s “speech” thus collided with the student’s First Amendment rights, and the student’s rights prevailed. In sum, individuals at each layer of university life enjoy considerable First Amendment protection. Indeed, no lesser authority than the Supreme Court has decisively declared that “the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.”

Exactly..  To read the rest of this outstanding legal op/ed by attorney David French, click on the text above.

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