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Public colleges that threaten free expression would face steep penalties under model bill

Inspired by ‘frighteningly illiberal demands’ from fall 2015 protests

College freshmen are being taught “the source of their rights is the vice president for student affairs” – a terrifying prospect.

So said a religious-liberty lawyer at a Heritage Foundation event Tuesday that explored model legislation to guarantee free speech and due process on public college campuses.

Casey Mattox of the Alliance Defending Freedom, which frequently sues colleges to protect students’ constitutional rights, portrayed the context for the state-based model bill, which was drafted by other speakers on the panel discussion.

What’s at stake is nothing less than our “American constitutional culture,” he said: Administrators tell students from the moment they step on campus how, where and when they can say things – and often, what they can’t say – backed by disciplinary penalties in the student conduct code.

Students have a better grounding in constitutional rights from “9th grade civics” than they do from college administrators, Mattox said.

Harsh penalties on repeat offenders

The model legislation drafted by the Goldwater Institute and Stanley Kurtz, senior fellow at the Ethics and Public Policy Center, is based on their earlier joint effort in Arizona, where the institute is based.

Signed into state law last year, the Arizona bill was inspired by the “frighteningly illiberal demands” made by students across the country in fall 2015, whose behavior resembled riots and lawlessness in countries without free-speech traditions, Kurtz told the audience.

MORE: Use state legislatures to crack down on public college censorship

Kurtz’s original plan would assign governing bodies the responsibility of crafting statements on the “centrality” of free expression and the university’s refusal to shield students from “deeply offensive” ideas. It would “supersede and nullify” restrictive speech codes and declare campuses open to any speaker invited by community members, he said.

Those who interfere with “the freedom of others to express their views” – say, shouting down lectures or obstructing meetings – would be subject to disciplinary penalties, and “particularly strong penalties” for repeat offenders, he said.

“Freedom of speech itself is the ultimate act of civility,” according to Kurtz, because it requires each person to develop the “self-mastery” of respecting others’ speech while practicing their own: The heckler’s veto is “tyranny.”

Re-establishing colleges as ‘sponsor of critics’ – not the critic itself

None of these provisions is new, according to Kurtz: They are based on Yale University’s so-called Woodward report, which followed similar attacks on free speech during the Vietnam era and remains official Yale policy.

The model bill would also impose “institutional neutrality” on public colleges – with flexible implementation – meaning they can’t take positions on public policy issues such as divestment from fossil fuels or Israel. The University of Chicago’s so-called Kalven report is the inspiration for such neutrality, Kurtz said.

MORE: College relents and approves pro-life club; policies still unconstitutional

That report declared the university the “home and sponsor of critics” but not the critic itself, which would repress dissenting students and faculty, according to Jonathan Butcher, education director at the institute. Unfortunately America seems to be in “Groundhog Day,” with such repression popping up on campus repeatedly over the past century, he said.

These state-mandated policies, including disciplinary procedures, would be explained in freshmen orientation materials, Kurtz said.

Each college’s governing board would compose an annual report for the state on how the campus is observing free expression – another contribution from the Woodward report, according to Kurtz. That would create a “counterforce” for administrators to resist the illiberal demands of protesters.

Students would also receive stronger due process protections than currently recognized by the courts, said Jim Manley, senior attorney for constitutional litigation at the institute. Commonplace restrictions on speech would be limited to time, place and manner, but not “the who and the what” of the speech, and they would be published and limited in scope.

MORE: Grow thicker skin and stop worshiping civility

When accused of violations, students would be given the right to receive the charges against them and the supporting evidence, Manley said. They would have the right to confront witnesses and call their own, present a defense, receive a decision from an impartial panel or judge, file an appeal, and retain “active assistance from counsel” for the most serious charges.

Threaten their coffers

Administrators will be wary of violating students’ rights under the bill because it empowers litigation against them and recovery of attorneys’ fees, Manley said: Such “citizen supervision” under Arizona’s law has already motivated public campuses to ditch their free speech zones.

Asked by an audience member why administrators would follow this new law if they currently ignored legal precedents, Kurtz cited the financial threat from both litigation and from state lawmakers with the power of the purse.

Proponents want to “draw trustees and legislators into the process” so that administrators think twice before acting against speech, he said.

Two potential elements were explicitly left out of the bill, according to Kurtz.

It is not being pursued as federal model legislation, and not as civil rights regulations either, because “it’s a lot simpler to deal with things on the state level,” he said.

There’s also no classroom component to the bill that would empower students to seek penalties against faculty, Kurtz said. But as evidenced by former University of Missouri Prof. Melissa Click’s behavior during its racial protests in fall 2015, he said, faculty often leave the classroom to harass others – and that would be punishable.

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