What State Legislatures are Doing to Protect Academic Freedom
Given recent campus protests, it is worth noting the efforts state legislatures are making to increase academic freedom at public universities.
Virginia led this movement with its ban on free speech zones in 2014. Previously students were unconstitutionally restricted to exercising their free speech right in small designated area on public university campuses. The Virginia bill mandated that this policy be changed, saying:
Public institutions of higher education shall not impose restrictions on the time, place, and manner of student speech that (i) occurs in the outdoor areas of the institution’s campus and (ii) is protected by the First Amendment to the United States Constitution unless the restrictions (a) are reasonable, (b) are justified without reference to the content of the regulated speech, (c) are narrowly tailored to serve a significant governmental interest, and (d) leave open ample alternative channels for communication of the information.
During the 2015 legislative session, Missouri legislators passed the Campus Free Expression Act (CAFE), making Missouri the second state to ensure that its public colleges and universities did not use free speech zones to restrict freedom of speech. CAFE expanded on Virginia’s language, including an exception for speech that “materially and substantially disrupt[s] the functioning of the institution subject to the requirements.”
Basically, this additional provision in Missouri’s law will allow universities to deal with incidents such as sit-ins that make it impossible for the university to continue to fulfill its purpose: teaching students. The bill also included a provision explaining how the college or university could be sued for violating this new law, thus giving it some teeth.
So what is next? What should we anticipate in 2016’s legislative sessions? College professor and Washington state Representative Matt Manweller is introducing HB 3055, a bill that includes an “Academic Bill of Rights.” The bill describes the need for free expression on campus, explains what free expression is and would issue penalties for those in violation of free expression on campus. Because Representative Manweller is also a professor at Central Washington University, he has a full understanding of restrictions on campus free speech.
The bill opens:
The legislature finds that free speech is one of the most important values protected by the federal and state Constitutions. The legislature also finds that free expression on the campuses of Washington’s public colleges and universities is particularly important for fostering a true marketplace of ideas, where students can be exposed to a variety of ideas and learn tolerance for those ideas with which they disagree. The history of university life has been to introduce students to ideas, concepts, and values they may object to or even be offended by. The legislature finds that speech on Washington’s campuses has been chilled by increasing regulations that are not viewpoint neutral. It is the intent of the legislature to afford campus speech the highest level of judicial protection.
Beyond eliminating Free Speech Zones, the bill targets trigger warnings and microaggressions. These provisions seem particularly important, since the recent campus protests centered on issues with trigger warnings and microaggressions. A microaggression is “a subtle but offensive comment or action directed at a minority or other nondominant group that is often unintentional or unconsciously reinforces a stereotype.”
While professors may use trigger warnings to notify students of potentially offensive content, the bill makes it clear they cannot be required to or prohibited from doing so. The bill prohibits universities from either requiring or prohibiting the use of such warnings. Similarly, the bill prohibits institutions from adopting any policy “that allows it to take adverse action against, discipline, or otherwise punish a student or a faculty or staff member for using microaggressions.”
Violations of any of these provisions would carry a penalty of at least $500 per violation. The final sections of the bill address disciplinary issues; protecting professors from adverse actions by the university with regard to their private expressions of opinion and whistleblowing; and ensuring that students have the right to due process when they are accused violating university policies or the rights of individuals.
When legislatures protect academic freedom, by encouraging free speech and the freedom to share ideas without fear of punishment, university campuses will truly allow students and faculty to pursue higher learning.