The real campus speech problem must be solved in the courts

Much ink has been spilled over the past few months debating whether or not there’s a free-speech “crisis” on campuses. But focusing on the number of speech-related flare-ups doesn’t capture the full scope of what’s really taking place at America’s colleges and universities — because the real threat to speech on campus is far more insidious.

On today’s college campuses, students are discouraged from expressing unconventional opinions outside the political mainstream through a combination of direct and indirect policies. Students regularly censor themselves from expressing opinions out of an abundance of caution; they fear reprisal — and with good cause.

{mosads}That’s why Speech First, a membership association dedicated to protecting college students’ right to free speech, filed suit against the University of Michigan last week, on behalf of three of its members enrolled at the school. In Speech First v. Schlissel et. al, the organization has asked the court to declare that the school’s speech code and bias response team violate students’ rights under the First and Fourteenth Amendments — and on Friday, asked for a preliminary injunction barring the school from enforcing these policies while the case works its way through the legal system.

Many schools’ speech codes — usually worded to encourage “civility” and discourage “offense” — are so overbroad and subjective that it’s impossible to know what might be considered a transgression. That’s how the University of Michigan’s “Statement of Student Rights and Responsibilities” is worded, and Speech First takes issue with that. With terms that vague, offense is in the eye of the beholder; often, mid-level administrators decide what’s taboo.

Michigan complements its code with something called a bias response team, a system that encourages fellow students who overhear comments (even ones taken out of context, between friends) to report offensive language to administrators, which is then tracked and publicly shared on the school’s website as a visible reminder of the student body’s various sins. Incidents are investigated, potentially subjecting students whose speech offends another student to punishment by process.

Depending on the outcome, he or she may be sent for “restorative justice” — a benign euphemism for a modern-day reeducation camp — to atone for the thought crime in question. But even if he or she is exonerated, the stigma of going through such a process, as well as the distraction from his/her studies and the burden imposed on his/her time, serves to significantly deter students from expressing ideas outside the mainstream.

Taken together, the speech code and bias response team have a chilling effect on students’ speech and behavior. Because it’s unclear what might land students in trouble, many simply don’t speak out at all. They don’t ask the questions they want in class, write the term paper they believe in, or invite the speaker that they want to hear from. They simply keep their head down and their mouths shut.  

A recent Gallup/Knight Foundation poll found that 61 percent of college students feel that the climate on their campuses prevents some people from expressing their views because others might find them offensive — a jump from 2016, when 54 percent of students agreed with the statement.

This trend must end, but obviously, schools aren’t going to do it of their own volition. Michigan is the first school that Speech First has sued, but it won’t be the last. Sadly, hundreds of schools around the country maintain illiberal policies.

America’s students deserve the opportunity to fully participate in their educational experience — by challenging dogma, asking questions and expressing opinions that don’t conform to groupthink. Today’s universities have created a culture of fear that discourages that kind of intellectual inquiry, and that’s a problem the judiciary must help fix.

Nicole Neily is the president of Speech First, a membership association that defends students’ free speech rights on campus. She is a senior fellow at the Independent Women’s Forum, and former president of the Franklin Center for Government and Public Integrity. Her political commentary has been featured on FOX News, Fox Business, CNN, PBS, and MSNBC. Follow her on Twitter @nickineily.