Following a spate of controversial protests on college campuses across the nation that sought to silence mostly conservative speakers, the University of Wisconsin System Board of Regents has adopted a policy that mandates punishment for students and other campus citizens who willfully seek to disrupt speakers.
The policy, resulting from pressure by the state legislature, calls for mandatory suspension of students who disrupt a speaker for the second time, and expulsion for a third offense.
This is one of the two most controversial aspects of the policy; the other is the potential for the “chilling effect” of those who want to properly protest a speaker. The disruption standard comes from a famous Supreme Court student free speech case (Tinker v. School District of Des Moines, 1968), which covers those who “materially and substantially” disrupt a lawful speaker on campus — a valid concern if the standard is not applied conscientiously. Ultimately, the courts may have to weigh in on how to draw a legitimate line between protest and disruption.
In addition to the disruption standard, the main features of the policy include requiring the following:
- An annual report on the status of free speech and the application of the policy by the system’s campuses to the Board of Regents.
- Orientation on free speech principles to all freshmen and transfer students.
- That the University not in any way discourage students or employees from expressing or harboring their own views when the University takes a public stand on a policy issue (the so-called “Neutrality” policy.)
Supporters of the policy claim that it is a necessary response to the spate of disruptions that have beset higher education over the course of the last few years, epitomized by the physical attacks on American Enterprise Institute political scientist Charles Murray and his faculty host last March at Middlebury—a disruption heard around the academic world, though it was hardly the only such noise.
At Middlebury, where protestors injured a liberal faculty member who was scheduled to debate Murray after his talk, dozens of students were disciplined, but no one was suspended or expelled.
At Berkeley, where preventing people from speaking has become routine, the protests exceeded their goals and became violent and destructive. Property was destroyed, businesses in the area were looted and fires were set in the streets. It’s hard to say how many were students and how many were from outside groups. The growth of these university protest movements with little or no consequence to those who disregard the first amendment of the Constitution must have prompted the Wisconsin State Legislature to act.
The only way to adequately restore the free speech integrity of the campus is to appropriately punish those who do the disrupting. Reasonable people can argue over what punishment is proper, but sanctions need to be meaningful to work. Claremont McKenna provides a recent positive example: it suspended the students who shouted down Heather Mac Donald of the Manhattan Institute to stop her from speaking last spring.
Several intellectual and constitutional harms arise when a rightful speaker is disrupted: the rights of the speaker; the rights of the person or group who brought the speaker in; the rights of the audience to listen to the speech—listeners do not always agree with a speaker; the right of the institution to be an “open university;” and even the obligation of the republic’s fundamental commitment to intellectual freedom. (The First Amendment does not apply to private schools, but most of them provide similar protections to students and faculty through contractual agreements or official campus policy.)
Implementing free speech counseling during freshman orientation is a good and necessary idea in today’s environment. The lack of civics education and American history, including a basic understanding of the Constitution, requires at least this effort.
Swinging the Pendulum Too Far the Other Way
So why are there critics? Several reasons. First, as FIRE pointed out on its website, the policy does not provide for disciplinary discretion to mete out different penalties based on the degree of one’s level of disruption. Those who shout down speakers or physically intimidate them are one thing; those who provide minor assistance in some other way other are another. Criminal law usually makes such distinctions. Should not higher education as well?
Another concern is the academic freedom of the institution itself, which has traditionally included sufficient institutional autonomy. This is the first time in history that the legislature has dictated to the University how it must punish its students. As mentioned, there are reasons to be distrustful of higher education’s will to apply sufficient sanctions in this context; but empirical evidence of the problems at UW System institutions would be good to substantiate these concerns in relation to the actual institutions the policy covers.
Just last week the legislature introduced a policy that FIRE claims would directly interfere with the UW Medical School’s academic policy and training of physicians when it comes to abortions. The proposed law does not allow training of UW Medical School personnel at places like Planned Parenthood. According to the medical school dean, Robert N. Golden, this training is required for the medical school to keep its national accreditation for OB-GYN training. As Golden said in testimony reported in the Wisconsin State Journal, the policy could leave medical school residents “with no place to be trained,” which would “’destroy the program and result in residents going to other states. Allowing them to leave Wisconsin would only worsen the state’s shortage of OB-GYN doctors, particularly in rural areas.’”
“It is disappointing to see members of the Wisconsin state legislature attempt to interfere with the academic policy and decision-making of UW’s medical school. The legislature would do well to avoid such intrusions into the academic freedom of faculty teaching at the state’s public universities,” FIRE wrote. Some observers of the free speech policy see it in the context of this and other legislative interventions into UW academic policy that have taken place in recent times.
Many people worry that this external intervention will set a precedent for other cases, especially given past legislative actions that have negatively affected Wisconsin’s national standing. And as conservatives have long maintained, government action is often meted out with a hammer, not a scalpel.
Another unfortunate feature of the policy is that is has been construed by many sources—including those with no political ax to grind and are even champions of campus free speech—to be a partisan effort. The reasons for this are twofold. First, the policy is ultimately the fruit of a legislature that is highly partisan and has its own agenda with a university system that it considers, not unreasonably, to be clearly tilted toward the left. Second, the legislature’s actions were modeled on a blueprint for such policies presented last January by the Goldwater Institute in Arizona, which leans right. Such pedigree does not mean that the policy is unprincipled per se, but the political background plays into the hands of those who see partisanship behind the scenes.
Supporters of the policy may properly reply that the legislative left and their allies have exacerbated the partisanship problem by refusing to acknowledge that free speech and other issues that marginalize the right have endangered higher education. (Interestingly, this lack of acknowledgment is not matched at UW-Madison and other national campuses, where numerous faculty members on the left share genuine concern for the status of campus free speech.) Amazingly, some have even asseverated that no such problem exists on campus nationwide. As it is, the politics of free speech remains as divided and partisan as our national politics more generally.
Accordingly, rather than helping the cause of free speech, the regent policy and its links to the legislature may ironically be harming the cause of free speech in certain respects. One of the lessons I have learned during my long tenure as a pro-free speech campus activist is that being perceived as partisan undermines the credibility of erstwhile valid free speech claims. Sadly, this misstep has taken place in Wisconsin.
To be sure, higher education has opened the door to such intervention by its failure to protect its most important principle, which is intellectual freedom. But the need for remedial action still leaves open the question of the most prudent way to proceed, especially when empirical evidence of disruption is lacking for the institutions the law targets.