About the Author: Finn Rosenfeld is a first year law student at American University- Washington College of Law. Finn graduated from Syracuse University and hopes to work in legislation and policy either on the Hill or at a federal agency after graduating law school.
Freedom of expression is a foundational principle of liberal education. The pursuit of truth cannot flourish where liberty of inquiry and debate are denied. Unfortunately, free speech is under threat at academic institutions across the country. Many universities maintain restrictive speech policies that undermine freedom of expression. [1] At public institutions, these policies amount to violations of expressive rights guaranteed by the First Amendment of the Constitution. [2] At private institutions, while constitutionally permissible, restrictive speech policies nonetheless violate the principle of free expression. [3]
Restrictive speech codes remain a common practice at public colleges and universities despite courts having consistently ruled that they violate students’ First Amendment speech rights. [4] The Foundation for Individual Rights in Education (“FIRE”) reviewed 471 schools and found that roughly a quarter either maintain policies that clearly and substantially restrict freedom of speech or prevent public viewing of speech-related policies. [5] Schools in this category include some of the nation’s most influential institutions such as Harvard University and Princeton University. [6] Further, roughly sixty-four percent of the schools reviewed maintain policies that either could be used to suppress speech or clearly suppress speech but restrict relatively narrower categories of speech. [7] To address campus censorship, in March 2019, President Trump signed an executive order directing federal agencies that make research grants to ensure academic institutions are complying with the law and their own policies to promote free inquiry and debate. [8] The order formally requires schools to certify that they are promoting free inquiry in order to access federal research funding. [9] However, this order essentially reinforces what schools are already supposed to be doing. [10]
To further the effort to restore freedom of expression to America’s campuses, Senator Tom Cotton, along with Senators Mitch McConnell, Kelly Loeffler, and Kevin Cramer, introduced the Campus Free Speech Restoration Act (“CAFSRA”) in August of this year. [11] CAFSRA builds upon President Trump’s executive order by creating a comprehensive framework for combating censorship by academic institutions. [12] At the outset, CAFSRA outlaws free speech zones* and creates a private cause of action allowing individuals and the attorney general to sue public universities that violate the ban. [13] CAFSRA also bars public institutions that maintain speech policies inconsistent with the First Amendment or the ban on speech zones from receiving federal funds provided under the Higher Education Act. [14] The bill then sets up a system for the Department of Education (“DoE”) to hear complaints alleging that a given speech policy violates the First Amendment or the ban on free speech zones. [15] In response to a complaint, the accused university can either remove the policy in question or offer a rebuttal explaining why the policy is legal. [16] After a complaint is filed and DoE receives the university’s response, there is a multistage process that includes rounds of agency review, appeal, and opportunities to remedy the offending policy before the university’s funding eligibility is rescinded. [17] Importantly, DoE’s findings and decision would not prejudice lawsuits brought against the same policies. [18] CAFSRA provides that any lawsuit over the policy in question would be conducted de novo. [19] Further, if an institution elects to maintain an illegal speech policy even when faced with losing funding eligibility, CAFSRA protects students by granting current students and recent admits five years to complete any program at the institution without their loan or grant packages being affected. [20]
Because the First Amendment does not apply to private institutions, CAFSRA treats them differently than public institutions. [21] CAFSRA conditions federal funding to private universities on the public disclosure of all policies relevant to students’ expressive rights. [22] CAFRSA also requires private universities to assume a contractual obligation to maintain and enforce the disclosed policies–and only those policies–and establishes a cause of action allowing students to sue a private university for violating these obligations. [23] Institutions that fail to satisfy the disclosure requirement or maintain a policy that they did not disclose would be in violation of the legislation and risk losing their federal funding eligibility. [24] As with public institutions, there is a DoE review process of possible violations, which is then subject to de novo review in court. [25] Current students’ and recent admits’ aid packages are protected in the event that DoE rescinds the institution’s funding eligibility. [26]
Some will inevitably argue that the federal government should avoid taking an active role in higher education. However, to the extent that CAFSRA simply ensures that institutions of higher education maintain speech policies consistent with the Constitution and adhere to their own policies, those provisions should be uncontroversial. It does not seem unreasonable that institutions receiving taxpayer dollars should not violate the Constitution or break their promises to their students. Some have expressed reasonable concern about certain language in the bill leaving the door open for loopholes or abuses, but it can be a long journey from a bill’s form in its introduction to its ultimate passage. [27][28] There surely will be ample opportunity for revision before the bill is brought to a vote, if it ever is.
*A free speech zone is a specific area of campus to which expressive activities are confined
[1] Foundation for Individual Rights in Education, Spotlight on Speech Codes 2020, (2020) https://www.thefire.org/resources/spotlight/reports/spotlight-on-speech-codes-2020/.
[2] ACLU, Speech on Campus, (2020) https://www.aclu.org/other/speech-campus.
[3] Joe Cohn, The Campus Free Speech Restoration Act’s approach to curbing campus censorship, Foundation for Individual Rights in Education, (August 24, 2020) https://www.thefire.org/the-campus-free-speech-restoration-acts-approach-to-curbing-campus-censorship/.
[4] Alex Aichinger, Campus Speech Codes, MTSU, (2009) https://www.mtsu.edu/first-amendment/article/991/campus-speech-codes.
[5] Foundation for Individual Rights in Education, Spotlight on Speech Codes 2020, (2020) https://www.thefire.org/resources/spotlight/reports/spotlight-on-speech-codes-2020/.
[6] Id.
[7] Id.
[8] Susan Svrluga, Trump signs executive order on free speech on college campuses, Washington Post, (March 21, 2019) https://www.washingtonpost.com/education/2019/03/21/trump-expected-sign-executive-order-free-speech/.
[9] Benjamin Wermund, Trump’s hyped free speech order asks colleges to do what they already have to, Politico, (March 21, 2019) https://www.politico.com/story/2019/03/21/trump-free-speech-college-1286517.
[10] Id.
[11] Michael Poliakoff, Can The Feds Protect Campus Free Speech?, Forbes, (August 13, 2020) https://www.forbes.com/sites/michaelpoliakoff/2020/08/13/can-the-feds-protect-campus-free-speech/?sh=7c87e3423b3b.
[12] Stanley Kurtz, Tom Cotton Introduces Campus Free-Speech Bill, National Review, (August 6, 2020) https://www.nationalreview.com/corner/tom-cotton-introduces-campus-free-speech-bill/.
[13] Id.
[14] Joe Cohn, The Campus Free Speech Restoration Act’s approach to curbing campus censorship, Foundation for Individual Rights in Education, (August 24, 2020) https://www.thefire.org/the-campus-free-speech-restoration-acts-approach-to-curbing-campus-censorship/.
[15] Stanley Kurtz, Tom Cotton Introduces Campus Free-Speech Bill, National Review, (August 6, 2020) https://www.nationalreview.com/corner/tom-cotton-introduces-campus-free-speech-bill/.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Joe Cohn, The Campus Free Speech Restoration Act’s approach to curbing campus censorship, Foundation for Individual Rights in Education, (August 24, 2020) https://www.thefire.org/the-campus-free-speech-restoration-acts-approach-to-curbing-campus-censorship/.
[21] Id.
[22] Id.
[23] Stanley Kurtz, Tom Cotton Introduces Campus Free-Speech Bill, National Review, (August 6, 2020) https://www.nationalreview.com/corner/tom-cotton-introduces-campus-free-speech-bill/.
[24] Joe Cohn, The Campus Free Speech Restoration Act’s approach to curbing campus censorship, Foundation for Individual Rights in Education, (August 24, 2020) https://www.thefire.org/the-campus-free-speech-restoration-acts-approach-to-curbing-campus-censorship/.
[25] Id.
[26] Stanley Kurtz, Tom Cotton Introduces Campus Free-Speech Bill, National Review, (August 6, 2020) https://www.nationalreview.com/corner/tom-cotton-introduces-campus-free-speech-bill/.
[27] Michael Poliakoff, Can The Feds Protect Campus Free Speech?, Forbes, (August 13, 2020) https://www.forbes.com/sites/michaelpoliakoff/2020/08/13/can-the-feds-protect-campus-free-speech/?sh=7c87e3423b3b.
[28] Joe Cohn, The Campus Free Speech Restoration Act’s approach to curbing campus censorship, Foundation for Individual Rights in Education, (August 24, 2020) https://www.thefire.org/the-campus-free-speech-restoration-acts-approach-to-curbing-campus-censorship/.
