Podcast: Should the Government Regulate Speech on Campus?

Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen president and CEO of the national Constitution Center and welcome to We the People, a weekly show of constitutional debate. The national Constitution Center is the only institution in America chartered by Congress to increase awareness and understanding of the Constitution among the American people on a nonpartisan basis. Recently President Trump announced that he will soon sign an executive order that requires colleges and universities to “support Free Speech if they want Federal research dollars.” On today's episode of we the people we ask, would the order be a good idea? What would the consequences be and would it be consistent with the Constitution? Joining us to debate the Constitutional and legal merits of the proposed executive order are two great friends of the national Constitution Center and two of America's leading experts on campus free speech. Sitting with me here at the NCC studio is Sigal Ben-Porath who is a professor of Education, philosophy and political science at the University of Pennsylvania. Her work focuses on citizenship education and political philosophy. And she's the author of the recent book free speech on campus. Sigal thank you so much for braving the cold and joining us here today in studio.

Sigal Ben-Porath: [00:01:21] Thank you so much Jeffrey. It's great to be here at the national Constitution Center and in my own city of Philadelphia.

Rosen: [00:01:27] Wonderful and Adam Kissel Is visiting scholar at American University and former deputy assistant secretary for higher education at the US Department of Education. He previously oversaw higher education grants at the Charles Koch foundation and served as vice president of programs at the foundation for individual rights in education. That's the great Fire organization. Adam it's wonderful to have you with us.

Adam Kissel: [00:01:53] Thanks so much for having me.

Rosen: [00:01:55] Wonderful. Let's begin with a policy question that is also relevant ultimately to the legal and constitutional question, which is simply this: is it a good idea for private universities who are not currently Bound by the First Amendment to respect the First Amendment? Adam?

Kissel: [00:02:15] Private universities have a very large diversity of mission. Some of them start with some premises that they build from, others are much more open to an entirely free Marketplace of ideas and in the American system, there's enough room for both. But what we find at almost every college and university in the United States that is a private one is a dedicated published commitment to free speech and academic freedom in more than one document, sometimes so that regardless of whether the First Amendment principles directly apply as they do in California even against private secular colleges under the Leonard law, they still dedicate themselves on their own to First Amendment principles. They say for instance at Yale: here we can think the unthinkable and mention the unmentionable and most colleges and universities will have adopted the AAUP the American Association of University professors statement on academic freedom that says that faculty members have a very wide range of freedom in their teaching research and other activities, so there's a very important set of principles that gives universities the reason to do this voluntarily and that's the search for truth. So in the idea of a liberal society that is searching for truth without bias, even a private university that's not bound to the First Amendment will say we want everything that comes out of this University to be at the highest level of quality we can muster and that means leaving faculty members free to think their best thoughts and do their best work.

Rosen: [00:04:08] Sigal, Adam points out that in California private universities are already bound by the First Amendment and many others have voluntarily committed themselves to free speech principles. Do you believe they should be formally Bound by the First Amendment?

Ben-Porath: [00:04:22] Well we start the podcast I think with a raging agreement. I'm sure we will find ways to diverge later on but I definitely agree with Adam's points and I would add that by my view private universities have a very strong public service that they are committed to and they are institutions that while private in their legal standing are in effect public in other senses. So they are public in the sense that they are providing various types of public service that relates to the mission that Adam was mentioning. We are training students which has both the public and the private benefit. We are promoting various types of research which again have a diverse set of public benefits. So we serve a public Mission and we are also in diverse ways dependent on the Public's Goodwill, right? So we are benefiting from a tax status for instance, we benefit from tax exemptions of different types, even as private institutions because of the public role that we serve so there are different ways in which private universities are also public institutions. I don't know that they necessarily need to be bound by the First Amendment formally although I think in effect, they practice and should practice their work and they should go about their business as if they are bound by the first amendment. I think it's going to be hard to do it formally particularly because of the various exemptions that religious institutions enjoy, which I don't know that people would want to meddle with. It creates a lot of tension around whether private religious institutions should be required in different ways to promote types of speech that they are- their mission stands in opposition to, but I think broadly speaking private universities should operate as if Bound by the First Amendment.

Rosen: [00:06:54] Great, so we have framed the debate with a broad agreement that in principle private universities should respect First Amendment values but a disagreement about whether they should be formally bound and Sigal has mentioned the case of religious institutions. Terry Hartle, vice president of the American Council for Education recently said, would Yeshiva University be required to host a holocaust denier? Would religious institutions be required to have speakers whose views were antithetical to the college? Adam let us now take up the question of why you believe that private universities should formally be bound by the First Amendment? You wrote a great piece in National Review 'An executive order on campus Free Speech' which I recommend to listeners which thoughtfully sets out the arguments in favor of the order. Give us the history of the order and why you think that private universities should formally be bound by an executive order to respect the first Amendment?

Kissel: [00:07:53] Thanks for those questions. There are really two different questions. I'll start with what I see is the origin of the interest in such an order. I think the idea that even private institutions serve a public benefit in particular cases is an important point, but I think the impetus for having the government get involved is that there's a pervasive sense that colleges and universities have not in fact done their job with respect to free speech and academic freedom, and we see over a long period of time, a generation really, that speech codes have existed at colleges and universities. These are unconstitutional at colleges and universities and they violate the university's own promises of free speech to their students and faculty members in most cases at private universities. So it's not just that those things are on the books, but they're used against students and faculty members and that happens across the political spectrum as well. To take a quick example of something that people were paying attention to in the Justice Department a couple of years ago. It was Constitution Day and there was a student who wanted to hand out spanish-language constitutions on Constitution Day, but outside of the free-speech zone at one of the colleges of the Los Angeles Community College District. The district had declared that all of the public areas of Campus were no longer open to robust Free Speech, but that Free Speech was really only fully allowed in a speech area, a free speech area at each campus, and the student wanted to exercise his regular First Amendment rights and be outside of the Free Speech Zone, and he was not permitted to do that without penalty. A court later said that that's not okay and the entire LA Community College District had to reverse its policy of having restricted speech in almost the entire system. So we have lots more examples like that and my work at Fire is available and Fire's work remains available now 20 years later. There's plenty of continued examples that have given us this impetus, especially in the past couple of years not just outside speakers coming to campus but again these internal issues where a student or a faculty member is threatened or punished either before the fact or after the fact for constitutionally protected speech or promised speech. So what we don't know with the executive order is what it will cover. So will it only covers speech codes? Will it cover outsiders who want to come to campus. who don't normally have a right to be there? First Amendment jurisprudence often says that the people who have the best level of free speech rights are the ones who already have a right to be there. Students and faculty staff members are in a somewhat different position, then outsiders who want to come onto campus are in a different position altogether, so we don't know that and will it cover such as in the recent UC Berkeley case where a non student was attacked by another non-student, but it was on the campus? We just don't know, so the interesting question will be what kinds of cases will the executive order cover?

Rosen: [00:11:32] Sigal, Adam gives examples where private universities are violating the First Amendment and says that it would be good to prevent them from doing that. He notes that there's some uncertainty about the reach of the executive order, in particular whether it will apply to just speech  codes or to outside speakers, but broadly says, to the degree that you both agree that private universities should respect the First Amendment and to the degree that they're not doing that now, it would be a good idea to require them to do so. What is your response about why you think that the executive order is not the right way to do that?

Ben-Porath: [00:12:09] Well, I agree with a lot of the description of what Adam was stating here. Speech codes clearly are an effort that is in significant decline. The most recent Fire statement suggests that about a quarter of the universities in the United States have some types of speech codes. I think many of them are not enforcing them. This is anecdotal. I don't have hard data on this in the same way that Fire collects about the existence of free speech codes on the books. But they are clearly not very effective beyond being unconstitutional which is of course the most important aspect. They are not an effective way of creating a culture of open expression on college campuses and I think universities public or private would do best- again, there is no distinction here from where I stand in terms of the extent to which they should just not use speech codes as a mechanism for enforcing a certain climate or a certain environment on their campus. Similarly Free Speech Zones are not I think a useful way of thinking about how we encourage students to be civically engaged, how we support an environment of open expression, and how we allow for people to distribute the constitution on Constitution Day as Adam's example shows or how we even allow them to protest, whether it's protesting political perspectives or actions or whether it's protesting the university administration's actions. They should not be confined to a little free speech Zone all the way over there by the parking garage where nobody can hear what they have to say. The whole point of engaging in free speech on a college campus is actually distinct from the point of engaging in free speech in the public square or in a democracy more generally because in the public square, the point of myself being allowed to speak is to express and reflect my equal dignity as a citizen right? I'm allowed to speak because I'm an equal citizen same as everybody else, but on a college campus, being allowed to be heard is actually a significant dimension of that. And so the construction of how free speech is enacted and practiced on a college campus is actually quite significant. So I want to agree that the engagement of private universities in an effort to stifle speech in these different ways  - speech Codes, free speech zones - is not a productive effort and it should be eliminated. However, exactly, we're going to do that- Fire has their way of reporting on this and giving green light and red light and trying to nudge institutions to become more open to free expression; if there are going to be other ways of doing so, I think that it really; I know the English phrase is the devil is in the details. I just want to say that in my language we say God is in the details.

Rosen: [00:15:35] What is the Hebrew version of that?

Ben-Porath: [00:15:37] God- *speaking in Hebrew* God is found in the small details. And so I just think, whoever we can find over there in the details, I think it's important to look exactly at how we're going to do that. I just have another quick point to make which is that other ways in which constitutionally protected speech is being stifled right now on college campuses, beyond the speech codes, etc. that were mentioned here is through recent bills that were passed in some state legislatures that prevent or punish student protest including for instance in Wisconsin where students engaging in protests are repeatedly- are expelled from their public system and there are similar bills going through in Arizona and Ohio and some other states. And so I think this is an additional concern where actually public universities are being called on to stifle students' constitutionally protected speech in the name of free speech, right? Because these bills are being passed in an effort to protect certain forms of expression which are marginalized on college campuses and to elevate them by preventing protests from taking place. So this is, I think, just along the same lines, I would like to see diverse forms of expression protected on college campuses and avoiding all of these tools that would that would limit, prevent, or punish open expression, and just about your example Jeffrey, I don't think it's just Yeshiva University that should be exempt from inviting a holocaust denier. I don't know that any University should be compelled to invite somebody who is propagating both hatred and lies. So it's not a question about whether the university's Jewish necessarily in the context of this type of speech but that's, you know, I think the example is more difficult than it needs to be.

Rosen: [00:18:01] Thank you so much for that. And thank you for the beautiful phrase “God is in the details,” which could be a motto of the We the People podcast because we need to wonk out and delve into these important legal and constitutional details in order to make up our own minds about this difficult issue. So let's get into the details now. Adam, Robert Zimmer, the president of the University of Chicago, sent an email recently opposing the proposed executive order on two grounds. He said the first troubling feature is the precedent of the federal government establishing its own standing to interfere in speech on campuses. This opens the door to any number of troubling policies over time that the federal government, whatever the political party involved, might adopt on such matters. The second feature is the inevitable establishment of a bureaucracy to enforce any government position, a committee in Washington passing judgment on the speech policies and activities of educational institutions, judgment that may change according to who is in power, would be a profound threat to open discourse on campus. So tell us about how this order once it's issued might be enforced even though we don't know the details. What's your response to this concern about a government bureaucracy located in the Department of Education or somewhere else in the executive branch making judgments about whether or not the first amendment has been violated and opening up the possibility of punishing universities in contested cases?

Kissel: [00:19:32] President Zimmer is not wrong to be concerned about both of those elements. The article I published this week represents both of those arguments as well. And Sigal's example about student protesters is maybe a good way to get into the issue. So the laws in question in these states are against student protesters who substantially disrupt the speech of others rather than everyday protesting. Now that might become a contested topic and if someone has to decide especially at the federal level, do those protesters during that minute disrupt the other event for too long or not? now you have a federal investigator or decider reaching all the way in to that detail and that can become a matter of deep contention, especially on contentious issues, which is why the protesters were there in the first place. So there is a pretty significant danger in empowering federal investigators to decide case-by-case, did something really happen or not happen that violated the First Amendment? What might make it easier as I also argue is that the executive order may not cover any of those specific cases. Certainly the Berkeley case would be one of those cases that is the application of free speech principles either working or not working, but instead to look at the black letter policy. Maybe training documents for how would adjudication is made but certainly speech codes. Those are the policies that are right there, and in many cases violate the constitution or the University's other statements and promises. So if the executive order is limited to black-letter policy rather than even standard practices, the administration would be on safer ground and secondly, if the administration waits for a federal court to say that that black-letter policy is unconstitutional and only then acts - even safer grounds. So there's no role for the executive branch. Maybe the executive branch would only wait until the judicial branch has decided before taking executive action to punish. Now in terms of precedent, it's true that if you want a federal grant, you have to certify to the government already that you're going to follow the law of the land. There's a form among many government forms, standard form 424 b for non-construction programs. You assure the government that you will comply with all applicable requirements of all federal laws, executive orders, regulations, and policies governing this program as well as eighteen other sets of things which include the Wild and Scenic Rivers Act of 1968, the civil rights laws against non-discrimination, the davis-beacon act, the Copeland act, the contract work hours and safety standards act, the anti-human trafficking provisions and the trafficking victims protection act of 2000, the lead based paint poisoning prevention act, and many more, so there's already quite a solid precedent for federal agencies being able to enforce violations of the law through the grant making power. And if you look at the authority say of the Secretary of Education, probably Health and Human Services secretary has similar authority and in fact HHS gives something like thirty billion dollars a year for fellow research whereas the education department gives much less, but the general authority of the secretary and 20 us code 1221 e 3 says: the secretary to carry out functions, otherwise vested in the secretary by law or by delegation of authority pursuant to law, is authorized to make, promulgate, issue, rescind, and amend rules and regulations governing the manner of, operation of, and governing the applicable programs administered by the department. Also 20 USC 34 74 says almost the same thing. So there's quite a lot of precedent for federal agencies to enforce through the grant making authority various regulations and rules and restrictions that apply to those particular sets of grants.

Rosen: [00:24:05] Many thanks for those two powerful points. First, you've suggested that one way of limiting the executive order might be to private universities that adopt speech codes that are clearly inconsistent with the First Amendment or that courts have so ruled, and second you say that the current secretary has authority to require universities to comply with existing federal law. Sigal let's take the first point first because there's a lot to say about it. Private universities that have speech codes are not currently bound by the First Amendment and therefore are allowed to restrict speech in ways that the First Amendment would not permit and many have harassment codes that in the views of some courts would violate the First Amendment if they were adopted by public universities. So what do you- what's your response to Adam's narrowing suggestion that an executive order limited to private universities that adopted speech codes inconsistent  with the First Amendment should have their funds withheld?

Ben-Porath: [00:25:16] Well, I think it makes sense for both the courts and the federal government to make an effort to support the alignment of rules and practices within, again, both public and private universities to align them with the expectations and the spirit of the law as well; as Adam was saying, the black letter of the law. I actually though, I suspect that an executive order is both not necessarily going to do that and also is not in fact intending to do that. It seemed to me both because of the venue in which this executive order was first mentioned or rolled out to the public even though it hasn't been signed yet of course, and because of the context in which it was presented, it seems to me that the effort has little to do with speech codes because look at the content of the speech codes, right? What are- I mean, obviously we can talk about their legality. But what are speech codes trying to institute or promote or prevent on college campuses? There are particular words you cannot say, particular phrases you cannot use on the college campus which may or may not be a good idea. I actually do sympathize with the suggestion that this is unconstitutional also in private universities and that it might make sense to try and push either through the courts or through the federal government, ideally not through executive order, which I just don't think is the most effective or justified means to try and correct for that. Again there are other ways, as we mentioned the Fire ways, etc. But I really do think that the executive order as suggested is trying to do something different. It's trying to create a greater space for conservative voices or it's trying to create a greater space for more viewpoint diversity on college campuses. The interest here is very- is not really limited to trying to change these long-standing, and as I said rapidly declining, practices on college campuses such as speech codes and Free Speech zones. The effort is to say, look at colleges and universities or certain ones that are not hospitable to diverse viewpoints, diverse ideological and political viewpoints and we are going to try to enforce a greater or a more friendly environment for diverse political views through the use of all of these sticks, right? So if you don't do that, if you cannot represent in your actions as an institution that you are supporting specific types of speech which are currently not by the view of the federal government properly represented on your college campus, then federal dollars are going to be withheld in different ways. And I think it also matters specifically which ones and in what ways, right, but the - so we can still talk about that - but the overall effort here is not one that has to do with aligning university, including private university, practices to you know the current interpretation of the Constitution or the original intent of the Constitution or whatever other legal guideline. The effort is to promote political and ideological viewpoint diversity. And so I think we should just be clear on what the executive order is attempting to do if it was only just about updating the current efforts from the old-fashioned or arcane focus on speech codes and Free Speech zones and to move to a more contemporary vision and more of course constitutionally aligned vision of what you need, how universities can and should act. I'm all on board. I mean, I don't think there would have been much of a debate and I don't think we would have needed to talk about an executive order because this would just be a part of the you know, every day common work that's being done in the Department of Education or the efforts that are being undertaken in the Department of Education. The executive order is directed more towards a political ideological view which you know, I'm not saying in a pejorative way necessarily, but I'm just trying to frame it as what the effort here is about. And possibly we can look at a very similar effort that is just concluding in Ontario in Canada where the provincial government has put out the very similar statement last fall saying that the universities and colleges in Ontario in Canada should all endorse a free speech, their robust free speech statement or else they would be barred from the provincial government's financial support. And I mean the result of that was that they all signed off on a statement and you know the deadline for that was January first. It was a very quick turnaround. So they just signed off on, you know, an agreement that they're going to support free speech based on the Chicago statement and that was about that. I don't think this is what we're trying to get at, right? This is not what- so, you know updating our efforts, our actual efforts around free speech on college campuses is not what this executive order is about.

Rosen: [00:31:52] Adam, Sigal suggests that the executive order in an effort to promote viewpoint diversity, which the First Amendment would require, might potentially infringe on the free speech and free association associational rights of the private universities themselves. And in this sense, she amplifies a point made by Noah Feldman in Bloomberg: “Trump's plan to protect free speech on campus is a bad idea.” Feldman notes that private universities have their own free speech and associational rights; they are permitted to choose what their speakers will say and what they won't say and for the president to stop campuses from making their own choices about speakers would infringe on their academic freedom with regard- respect to determining the truth according to scholarly standards and creating an atmosphere of Civility, and to the degree that both Sigal and Feldman are suggesting that the executive order might violate the First Amendment rights of the universities to endorse some speakers and not others then would it raise constitutional difficulties under the Solomon Amendment case, Rumsfeld and FAIR, where the Supreme Court in 2006 said that the Department of Defense could deny contracts to higher education institutions that prevent the military from establishing an ROTC program, but only because requiring ROTC spokespeople was a form of conduct not speech and would not violate the speech rights of universities.

Kissel: [00:33:26] If I understand the Solomon opinion correctly, the court said that the law does not force the university to speak or not speak simply by hosting or not hosting folks in a neutral forum who are there say for general recruiting day. So whether it's ROTC or the military or anybody else, if there's equal treatment of everybody in that forum, the university is not taking a position on whether it likes or dislikes any of those participants. I may not have that exactly right. But what's important for institutional academic freedom, which I think is the issue we're talking about, is that the institution as a whole has associational rights and speech rights. So the question would be, would the government be violating the first amendment by saying to a private university whom it may and may not associate with, or in some strange affirmative action for diverse viewpoints perspective, being forced to add people to a panel or to a presentation simply to balance out the views. I don't see any such interest from what I've seen in the Justice Department's official statements of interest in the three cases that it intervened in in First Amendment law suits. Instead what I see is attention to the actual rights of the students whose rights were allegedly violated and probably were, so we don't know what's in the executive order, we also don't know really the reasons that the executive order has come to be, but we do have insight from the statements of interest filed by the justice department in some cases with cooperation from the education department as you could find online. What's interesting about the nexus for research funds is as an academic freedom matter, the one who pays for the research in this case, the government, has a pretty strong interest in that research being good and that also means that it's unbiased. So if the university, even a private one, promises free speech to its researchers, but says, but actually because of our sexual harassment policy, you can't say this or this and maybe not even study that or that because that's just politically incorrect. Then that colors deeply what the researcher feels like he or she can even study and then even in the research grant what they can say about what their findings are. So if you have money going to that private university with a speech code you say hmm maybe I can't trust that research. And so that's a pretty close nexus between the grant program and the results that you want to get out of the program. So even at a private university that has made a free speech promise, there is an important role for the federal government to protect the public's dollars because that's what the dollars are for. Now if the university has not promised free speech, they are not going to be held, I don't think ever, to First Amendment principles. So that will be an interesting question for how that gets worded if that's part of the executive order, but otherwise thinking about the bias caused to the academic researcher, not because of what he or she wants to do, but because of it being a policy of the university and the reason that being a problem for federal research dollars.

Rosen: [00:37:10] Sigal once again Adam notes that if the executive order really is limited just to speech codes, that would be unconstitutional under the First Amendment, then the associational and expressional rights that you raised would be less front and center. So let's focus on that. If, and this is a big if, all the executive order did is basically forbid private universities from having speech codes that federal courts have already said that public universities can't have, in cases like the 2010 case of Macaulay versus University of the Virgin Islands where the third circuit held that a policy prohibiting the infliction of emotional distress created a blanket chilling of protected speech, would your concerns go away or do you believe that private universities should have the ability to take positions that would be impermissible by the First Amendment such as Liberty University refusing to invite speakers who reject its religious doctrines or other progressive universities refusing to invite conservative speakers?

Ben-Porath: [00:38:25] Well, I think these are two very different examples, right? So I think to answer your question directly, if it's just about the speech code, I think our differences are quite small. I think if we're talking about universities permissibly preventing certain voices from being heard, we have to be clear about how this prevention aligns with the mission of the University. I actually don't really agree with Adam that it would be useful to only just refer back to the University's own statements and policies because this would really just invite universities to avoid making any commitments or statements about free speech in their policies or to retract their sign off on the AAUP statement of principles, etc. So, I don't know that this would be actually an effective way of promoting free speech on college campuses, which I think is everybody's goal here, right, even as we may have different interpretations or different visions of what this protection of free speech might look like, I think the way that universities have to be judged and the way that they should be assessed on their protection of free speech does have to relate back to their mission; if they are religious unity, if they are Catholic universities and they don't want to give voice to you know, student organizations or speakers for instance that are pro-choice and there are some cases around that as well, I think there is more reason to- for students and faculty people in these universities to expect that for a Catholic University that the part of its mission relates to issues related to abortion, for instance, that they would not give equal representation to views from the other side. Again, there are details here regarding, are we talking about a faculty person saying something in class? Are we talking about equal funding to a student organization that supports Planned Parenthood? I mean what exactly are we talking about in terms of giving an equal voice to people on the other side? And- but I do think that the mission of the University matters here, both the broad mission of all higher education institutions, which is to search for the truth, and to educate students, and this mission does have as one of its cornerstones a commitment to open expression because we do have to be able to hear different sides in order to assess our own views, you know going back to arguments from John Stuart Mill, right? If you cannot respond to a counter argument your view is nothing but dogma, right? You really cannot make the case for why you believe whatever it is that you believe. So I think it's beneficial for, as you mentioned, progressive universities to give enough space to conservative or other voices, because we don't have progressive universities that their mission is progressive in the same way that Liberty is- Liberty University's mission is religious, right? It's a different thing you're talking about; the actual formal mission of a religious University that's promoting a certain denomination or religious views, versus the university that happens to evolve in a way or because of historical and other reasons, cultural reasons, social reasons, has become or has come to lean more progressive. And in the second case, we really do need to maintain more space for diverse views, including conservative and other views assuming that we continue to support all of our students and to make sure that not only just all ideas can be heard but also all people and particularly all members of the university community can be heard. But you know, I think the way you phrase your question Jeffrey is really important here, because it's important to remember that the university is not one entity, right? The university actually has a very small voice in most of the speech that is happening on campus. Faculty people, student organizations, centers, department chairs, school administrations; I mean you have a lot, you know, you have a whole cacophony as you would know or recall if you were ever on a college campus, of very diverse voices, perspectives, and opinions and I think the main goal of the University as framing is to make sure that these voices are protected and supported in a neutral and effective way, right, so that if we have different student organizations, that we support them in a neutral way rather than prioritize one perspective over another. That they are able to speak to each other. We need to support academic freedom as Adam mentioned as well so that different faculty people can do their research effectively, etc. And I don't think the federal government's statements about a commitment to support and protect free speech is going to make a significant difference. I'm not saying that universities currently are doing it in a perfect way and I also agree with Adam that the federal government's effort to regulate or to meddle with the ways in which we conduct our research and promoting certain perspectives over others in some instances is either desirable or effective. I don't think it is either, but I think calling for the federal government to have an even greater role in the institution of free speech practices on college campuses is going to create a better environment for open expression. I don't think this is the right way. I think it leads us in, as you mentioned in your original question to Adam, leads us in the direction of a greater bureaucracy. You know, it's like some kind of a specter of a thought police right, like, you know expecting people to report on each other to let us know whether their institution is supporting them effectively in the way that we- instead of figuring out within their institution the proper ways in which they can respond to infringement on speech.

Rosen: [00:45:40] One last question and then we'll have closing arguments. Adam one genesis for this policy was a series of articles by Frederick Hess and Grant Addison from the American Enterprise Institute: “free inquiry and federally funded research,” which was published in a long piece in National Affairs in 2018, and they argued that as a condition of eligibility for federal funds, colleges and universities should first assure that they don't restrict constitutionally protected speech or engage in viewpoint discrimination. They should commit to safeguarding free inquiry to the best of their abilities. And third they should formally acknowledge that in accordance with federal policies, those in violation of these commitments should refund the balance of funds. They had proposed originally that this be done by Congress as was done in the Solomon Amendment, but they said a tactic less permanent, but easier to initiate, would be an executive order and they invoked as a model President Obama's 2009 memo on scientific inquiry which mandated that Federal government agencies modify their policy to better reflect Principles of Scientific Integrity. My question is, is this a good idea to do it by executive order? Is it stable and does doing it by executive order raise legal and constitutional vulnerabilities that would not be present if it were done by statute, in particular given the line of cases like South Dakota versus Dole which say that the president can't unilaterally condition funds but needs Congressional support?

Kissel: [00:47:22] The reason it's a good idea to protect research dollars is that we really do want those dollars to result in usable truth or usable results that will help us decide that the money was well spent. So to the extent that there is a nexus between the research dollars and academic freedom of the researcher, which is closely tied to speech codes, it makes good sense for there to be accountability from somewhere. Obviously a law has more staying power than a regulation and a regulation has somewhat the same staying power as an executive order. Executive orders are easier to change if the president wants to. Regulations are hard to change and often involve notice and comment from the public. So there are different ways to resolve the question of permanence, but in all of those cases since none of those are at the level of the Constitution except the First Amendment itself, a different Congress, a different president, different agencies if these are agency regulations, a different head of the Office of Management and Budget which has larger oversight responsibilities over agencies, could change any of those kinds of rules. So there's not staying power even in the Constitution as listeners know and there are threats to the First Amendment at that level as well. So vulnerability is significant. And I think the bureaucracy question should not be left behind which is why in my piece I suggest that the scalpel approach might be the best way rather than having a whole new office that will investigate individual actions or inactions by a campus. I would like to address a few things that were mentioned which would be interesting to talk about. So what would happen if a university says to get out of it, we're just going to take away that promise of academic freedom to the faculty. Well, the first thing that would happen probably is the faculty would rise up and say no, we here at the American Association of University professors chapter at X University really want to have academic freedom and we want you to put that in the policy and keep it there. So there would be a cultural benefit probably on campus for the faculty to rise up and say wait, this is the kind of place we are and want to be. So I agree that if the legislative, executive, or judicial branch gets involved from the outside and tries to tell the university what it can and can't do, that could backfire or be of limited use in changing the culture. A group like Heterodox Academy tries to work from the inside with viewpoint diversity to help faculty members see among themselves what the situation is on their campuses and what they could do. I would like to make a couple of corrections: one is that University of the Virgin Islands is a public university as is Pierce College in the LA Community College District, and even though most of this conversation has been about what to do with private universities, there's still a real question about whether this is a good idea for public universities and why they should have extra restrictions on government grants through the executive branch rather than when someone's rights are violated to go to the court, which they can already do. Another quick correction is on Liberty University. I encourage listeners to read the piece from Larry Provost this week explaining how they have welcomed people such as Bernie Sanders to campus respectfully and they've been wide open to a pretty healthy diversity of ideas. I also would like to read The Evergreen State College mission statement in response to the idea that we don't have progressive commitments. We actually do even at public colleges like Evergreen. Their key sentence says: Evergreen supports and benefits from local and global commitment to social justice, diversity, environmental stewardship, and service in the public interest. So whether you think that is politically tinged or not, they do have a mission that is not simply research and teaching and letting all flowers bloom.

Rosen: [00:51:51] Sigal your final responses to some of the points Adam has made including the fact that although executive orders can be reversed more easily than a statute, holding universities to their own commitments may be more solid legal framework than imposing them unilaterally as well as some of the other points he just raised.

Ben-Porath: [00:52:13] Right I mean I don't want to go into all of the different examples, although I think they are definitely valuable to discuss. I think we've seen a lot of censorship of opinion at Liberty University in the last year, but that's that's not the main point here. Really the main point is to try and go back to the question of what is the executive order trying to resolve, and why is it using a threat to research dollars to try and resolve it? Right? So by my understanding, the concern coming from the administration and from various conservative circles is that we do not see enough of a hospitable environment for conservative and other non progressive perspectives on college campuses, and the way that the administration is hoping to resolve this is by focusing on a threat to research dollars, which are actually immaterial to the issue of viewpoint diversity on college campuses. I think the main concern that is being raised again is related to the experiences that mainly students have through their education and to a more limited extent, the experience that faculty people have, a conservative or other- sometimes a devoutly religious faculty people or others, have on college campuses, and how we can make the campus, especially private campuses but also others, more inclusive to diverse voices; how can we allow for universities and colleges including ones that have a commitment to social justice? I know it's a red flag to some people but I think it's a pretty innocuous statement. Environmental stewardship and social justice I think are pretty broad visions. I don't know that they limit the perspectives that can be heard on campus. But I think we do need to make sure Evergreen and at Liberty and you know all the other places in between to make sure that people have an opportunity to hear different voices, to consider their own opinions and others' opinions, to reflect on them, and to be able to change their minds and so this is the goal of a university education or a college education, and an effort to come and threaten research dollars to try and coerce universities to certify that they are committed to open expression maybe through some technical ways such as a, you know, presenting a list of the conservative speakers that they had on campus I mean, I just don't think that this is going to make the kind of cultural change that I actually, you know, I'm not maybe as concerned as some people in the administration maybe, but I do think there is definitely room on some college campuses, especially more selective college campuses, to be more attuned to the need for a greater space for ideologically diverse voices on their campus. There are various ways of doing this. People are you know, making various attempts or experimenting. Heterodox Academy was mentioned. There are other efforts underway to try and create a more hospitable environment for diverse voices on college campus. I don't know that threats to research dollars are just an effective way of addressing any concerns.

Rosen: [00:56:22] Well, it is time for closing statements in this nuanced, illuminating, and important conversation. Adam, first one is to you. The question is the obvious one. Tell We the People listeners why you believe that an executive order withholding federal research dollars from universities that violate the First Amendment would be a good idea. Thank you very much for reminding us that it would apply to public as well as private universities and in the course of your statement, I'd love to hear how big a deal would this be? If it goes through what it meaningfully change the climate of free speech on college campuses in a salutary way or not?

Kissel: [00:56:59] To sum up my point, which is the same as the Hess and Addison point from the article you mentioned, public funding for research has public benefit and already has a lot of public oversight. We protect the civil rights of beneficiaries. We protect beneficiaries against lead paint. We protect them against human trafficking. Why can we not also protect beneficiaries First Amendment rights? Especially because there's a close nexus between the quality of academic research and being able to do that in a free environment where people can think the unthinkable, mention the unmentionable. And so what will happen I think even in a very limited executive order like I have suggested could exist, some faculty members will say hmm our university has a lot at stake in federal research money, and not that much at stake in getting our speech codes right, and they should really be consistent with the Constitution anyway, or our own promises anyway, so we'll just fix those up and that will be the result. So the culture will not change that much but the enforcement of speech codes will stop pretty dramatically in so far as those will no longer exist.

Rosen: [00:58:23] Sigal the last  word is to you. It's the same question. Why do you believe that executive order withholding federal funds from universities that violate the First Amendment would be a bad idea and if it goes through do you think it would be a big deal and would it change the situation on campus in a good or bad way?

Ben-Porath: [00:58:42] I think it's not a good idea because it really represents the kind of federal government overreach that stifles the opportunity or impedes on the opportunity of universities to fulfill their missions in the way that they see appropriate and according to their professional norms, their individual institutional histories and missions. I think that if it goes through, I mean the best case scenario similar to what I mentioned earlier regarding what happened in Ontario, Canada, is that it doesn't make a significant difference and possibly, and I agree here with Adam, maybe some institutions would find it appropriate to align their policies or their guidelines more appropriately with constitutional requirements including with the elimination of speech codes and other Arcane practices. I actually would like to see bigger changes in campus culture that would reflect the fact that the courts in the last 40 years or so have significantly reduced their commitment to free speech for younger people. So my perspective is that ever since, and I know we're not talking about high schools here, we're talking about the universities, but the people who are arriving to the college campus after they finish their high school education generally speaking in the last few decades have zero experience with an environment where free speech is valued at all. Ever since the Thinker decision 40 years ago or so, the courts have repeatedly and consistently restricted the free speech rights of high school students. As a result, the students that we are seeing today have very limited exposure to the First Amendment, what it means, why it is valuable, why they should respect it. And this is the intersection of civic education and open expression or First Amendment legislation, First Amendment application, that we should really focus on on college campuses. Students are just not familiar with why free speech is important and why we should protect it. This should be an important aspect of the educational mission of colleges and universities and this is what we should strive to do as a sector with the support rather than the pressure from the federal government.

Rosen: [01:01:33] Thank you so much Adam Kissel and Sigal Ben-Porath for an illuminating, thoughtful, civil, and very educational discussion of this extremely important topic. Educating young people about the civic importance of free expression is something that the national Constitution Center and both of you, Adam and Sigal, have championed with much distinction and so thank you both for spreading constitutional light and educating We the People listeners. Adam, Sigal, thank you so much for joining.

Ben-Porath: [01:02:07] Thank you.

Kissel: [01:02:08] Thank you very much.

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