Issues of free expression and civil discourse on college campuses have become core features of the national conversation about higher education. High-profile incidents, including on campuses such as Yale University and Middlebury College, have focused attention on questions regarding free speech, academic freedom, and ideological diversity. Much of this conversation has been constructive and positive; some less so. The past academic year, while certainly not free from on-campus controversy, was thankfully less fraught than the previous two years. It is hard to say with precision what has caused this seeming draw back. Perhaps the excellent work of advocates to promote the principles of free expression and tolerance has had a positive effect on the campus climate. Or perhaps campus communities are simply exhausted by all of the controversy, wishing to return to scholarship and the other important work of campus life.
We all have reason to believe, however, that this time of relative quiet will not persist: the 2020 presidential race, which is already well underway, will have an effect, and likely will take its toll, on campus communities across the country. Some of the ideological conflict contained in our polarized culture will arise on college campuses, raising knotty questions about civility, free expression, and the place of higher education in our broader public life. College and university administrators today have an opportunity, bordering on a fiduciary duty, to think through these difficult issues now, during this period of comparative calm, before the storm of the 2020 political season bears down on campuses in earnest.
This brief article will present a mini case study illustrating some of the dynamics that occur in the rush of events preceding and during a free speech controversy. Although a few critical observations will be made, it is not the goal to second-guess or denigrate college leaders doing their best in unfamiliar circumstances. Following the case study, a number of practical and positive policy development steps will be presented, steps that proactive campus leaders may wish to undertake to prepare for such issues. The conclusion reached is that all campuses need to develop or revisit their free expression policies in light of contemporary realities and trends.
Difficult Issues Regarding Student Political Speech
This case study will focus on events that occurred on Emory University’s campus the weekend of March 19-20, 2016. It has been chosen for two reasons: 1) It presents a situation that is very likely to recur on campuses around the country within the next two years, and 2) It shows the importance of developing clear and actionable policies regarding free expression before controversy occurs.
In March 2016, the Emory University campus witnessed political messages written in chalk on walkways, benches, and other campus features. The chalkings generally said “Trump” or “Trump 2016.” The nomination process was in full swing nationally at that time, so there was no officially declared Republican nominee for president. The GOP primary had been held in Georgia a few weeks earlier. Trump won.
On a Monday, a group of forty to fifty students, many of whom were minorities, held a protest, starting on the quadrangle and then moving into the administration building, seeking to meet with the president. The president did meet with the students. Their general message was that the chalkings advocating Trump were “hate speech” and a form of intimidation, especially of minority students.1 Following this meeting, the president quickly sent an email to the campus community, indicating that the students could have reasonably felt intimidated, having heard a message contrary to diversity, and that campus security would review surveillance footage near where the chalk markings were found, so that the perpetrators, if students, would be identified and put through the conduct violation process.2
The president’s email, especially the pledge to punish the student chalkers, met with negative reaction from Emory students on social media. In the national press, there was mockery of the notion that students could experience fear or pain at the sight of chalk messages.3 Several prominent Emory alumni, including former House Speaker Newt Gingrich, expressed concern on cable television channels about the state of academic freedom on the Emory campus. A number of Emory student leaders appeared on national television, generally objecting to the idea of punishing the chalkers. Conservative campus groups organized a rally entitled “Make Emory Great Again.”
For a few days after the president’s email, the administration stuck to its initial interpretation that an incident of intimidation had occurred. However, by the end of the week, their position changed. They issued a statement declaring, “Emory University has not identified the individual(s) responsible for placing chalking graffiti in various campus locations earlier this week, and no follow-up action is planned related to the incident. It’s important to note that chalkings by students are allowed as a form of expression on the Emory campus but must be limited to certain areas and must not deface campus property—these chalkings did not follow guidelines—that’s the issue regarding violation of policy, not the content.”
Issues and Lessons
In retrospect, it is obvious that the president’s initial email was drafted and sent too quickly, relying entirely on the perspective of a small number of students and without seeking broader input from the campus community. For example, the use of the term “intimidation,” which has a specific legal meaning as developed in free speech cases adjudicated by the U.S. Supreme Court, was, legally speaking, an over-statement of the facts of the matter. More consultation with university counsel could have helped clarify the terms of the email. However, once those positions had been taken publicly, it became necessary to indicate that the perpetrators would be identified and punished. This threat was viewed by most observers as inimical to freedom of expression, particularly of the political speech that the courts have held to be the “core” of the First Amendment, and thus was seen as a highly inappropriate position for an academic institution to take. As a result, Emory received substantial reputational damage and wisely changed its position on the student chalkers by the end of the week.
The strongest lesson to be extracted from the Emory situation and many similar cases, however, is the need for policy development in advance on free expression and civil dialogue as well as continuing communication of that policy. Such a policy should make clear that freedom of expression is a core academic principle, which every member of the academic community is obligated to uphold and respect. Institutions need to articulate a strong rationale for free expression and adopt rules to ensure its observance in light of contemporary realities.
Guidelines for Reviewing, Developing, and Updating Policies on Free Expression
What steps can and should academic leaders undertake to create and/or update campus policies on free expression and civility?
The foundational action for an institution is a comprehensive policy review and update, in light of current conditions on campus, in society at large, and in the realm of social media. The objective of the review should be to articulate in a single document the institution’s fundamental commitment to freedom of expression and viewpoint diversity as essential features of its educational mission and character. These commitments must prevail in day-to-day classroom activities and in residential life if it is to be observed in the case of invited speakers and special events. These ideas can be delineated as a statement of principles and philosophy, followed by policy provisions for academic life, campus discussion and activities, student conduct rules, and security precautions—including the procedure for event postponement or cancellation under dire circumstances.
A recent example of such a statement of principles can be found in the document authored by Professors Parini and Callanan of Middlebury College.4 Their statement of the essential requirements and understandings for a college community characterized by academic freedom, produced after a free speech incident on their campus, received endorsement by a plurality of the Middlebury faculty and by leading national advocates of free expression. The principles in the statement include the ideas that:
- Genuine higher learning is possible only where free, reasoned, and civil speech and discussion are respected.
- Only through the contest of clashing viewpoints do we have any hope of replacing mere opinion with knowledge.
- The incivility and coarseness that characterize so much of American politics and culture cannot justify a response of incivility and coarseness on the college campus.
- Students have the right to challenge and even to protest non-disruptively the views of their professors and guest speakers.
- A protest that prevents campus speakers from communicating with their audience is a coercive act.
- The purpose of college is not to make faculty or students comfortable in their opinions and prejudices.
- The purpose of education is not the promotion of any particular political or social agenda.
- The primary purpose of higher education is the cultivation of the mind, thus allowing for intelligence to do the hard work of assimilating and sorting information and drawing rational conclusions.
- A good education produces modesty with respect to our own intellectual powers and opinions, as well as openness to considering contrary views.
- All our students possess the strength, in head and heart, to consider and evaluate challenging opinions from every quarter.
- Such a statement of principles should be part one or the introduction to the comprehensive policy on freedom of expression on campus. There are many other examples of ringing statements of principles related to free expression in higher education.5
However, the key point is for each institution to generate its own statement of principles, drawing on the inspirational work of others and, more importantly, drawing on the institution’s own mission statement as well as its history and articulated values. Linking free expression to institutional mission unites the faculty, administration, students, and trustees in supporting a campus climate of freedom. Such a policy also enables an institution to demonstrate to accrediting bodies and the general public that it is endeavoring conscientiously to adhere to and fulfill its stated purposes.
A comprehensive review process might move forward as follows:
The president and chief academic officer should consult with a broad range of institutional stakeholders, including faculty, students, administration, and governing board leadership, to establish a Task Force for Campus Free Speech Policy (hereafter, “group”). Topics for discussion and consideration in this consultation should be: selection/composition of the group, its charge, its reporting relationship, and the expected institutional action on its work product. Neglect or lack of clarity on any of these issues will run the risk that they will come up in the final stages of the policy development process and constitute difficult obstacles for institutional action. It is important that the group include governing board members and that they commit to attend and to participate in the group’s work. Membership might include the chair of the Academic Affairs Committee and also a trustee who is an attorney. The president and trustee members of the group, along with the chief academic officer, will eventually need to advocate adoption of the report of the group by the governing board as institutional policy binding on all.
The first topic for the group to discuss and achieve agreement on is the statement of principles, as referenced previously. It should be a strong, affirmative rationale for free expression on campus, reflecting an integration of widely recognized principles of free expression in higher education with the institution’s mission and history. The key foundation should be institutional mission, not external law or the First Amendment of the United States Constitution. Obviously, the latter is in play for public institutions, but it should not be the primary rationale for free expression. Private, independent, or denominational institutions will have some latitude on this statement, reflecting denominational or historical aspects of their missions. It is advisable, however, to avoid proscribing particular viewpoints. A better approach is to indicate that viewpoints driven by the institution’s mission must also be presented when, for example, an invited speaker espouses contradictory views.
The next step for the group would be to commission a survey on the prevailing campus climate for free expression. It is crucial to have data elucidating the perceptions of the campus community regarding the presence or lack of openness to the expression of diverse viewpoints on campus, including the classroom, residence halls, public spaces, and in terms of the viewpoint diversity of invited outside speakers. The Campus Expression Survey, produced by the Heterodox Academy, is a readily available instrument, which can be customized to reflect the particular mission commitments of a college or university and to then test whether those commitments in fact are being realized in campus life.5 Survey results should be released to the campus community and made part of the group’s report.
The group should then develop procedures and rules to realize in practice on campus the articulated statement of principles. Legal counsel will be essential at this stage, since many definitional and due process issues have been topics of U.S. Supreme Court opinions or are covered in U.S. Department of Education regulations. Any prevailing speech code or bias reporting procedures should be reviewed for any needed revisions to avoid inhibiting free expression principles. Key topics to be covered by the policy include definitions of hate speech, threats, intimidation, and harassment, indicating that only the latter three are defined in law. It is essential to emphasize that merely offensive expression does not, by itself, constitute aggression or violence. Other topics include classroom openness, expression by students as individuals or in groups, procedures for faculty and student groups to invite outside speakers, penalties for disruption of speakers and occupation of campus facilities, naming and campus monuments policies, and procedures for cancelling an event due to unresolvable security concerns. A booklet published by The Institute for Humane Studies at George Mason University, “A Framework for Campus Free Speech Policy,” discusses best practices in each of these areas and can be a valuable reference for the group.7
The policy should also reference and dovetail with the institution’s crisis communications policy. On-going education of the campus community and monitoring of effectiveness should be delineated. There should be periodic reports to the governing board on campus openness and opinion diversity. It should be specified that the campus climate survey will be re-administered periodically and results shared publicly.
The draft policy should then be posted on a password protected website for comment by campus community members. The group should hold a number of open forums for presentation and discussion of the draft policy. The governing board should have a discussion of the draft policy and legal counsel should review it for any needed revisions. Some attorneys will undoubtedly indicate that adopting a free expression policy will open up the institution to breach-of-contract lawsuits. However, not having a policy means that the institution is not taking its mission principles seriously and is no guarantee of not being sued.
The group should make any needed revisions in the policy and then adopt it as its final report for submission to the president. The president, in conjunction with the academic deans, should forward the policy to the relevant faculty body for endorsement. Then the policy should be presented to the governing board for formal adoption as institutional policy, binding on the president and administration as well as faculty and students. The president and administrators are bound by the policy and if they follow it they are less likely to endure a campus incident that brings negative attention and the potential for reputational damage.
Having a well-crafted and broadly supported policy on free expression prepares the campus community to avoid or at least better manage free speech issues and incidents. It shows that the college or university has institutional integrity with regard to its mission by striving to create and to preserve an atmosphere of freedom and open inquiry that is essential for higher education to take place. Putting in place and following a policy of free expression can help to avoid free speech incidents and help to protect the institution’s reputation should an incident occur.
- Amelia Sims, “Calling Trump Campaign Slogans ‘Hate Speech’ is a Threat to Democracy,” Politics and Business, March 25, 2016.
- Conor Friedersdorf, “How Emory’s Student Activists Are Fueling Trumpism,” The Atlantic, March 25, 2016.
- Susan Svrluga, “Someone wrote ’Trump 2016’ on Emory’s campus in chalk. Some students said they no longer feel safe,” The Washington Post, March 24, 2016.
- Jay Parini and Keegan Callanan, “Middlebury’s Statement of Principle,” Wall Street Journal, March 7, 2017.
- For examples, see the well-known Chicago Statement (https://freeexpression.uchicago.edu/) as well as the statement authored by Robert P. George and Cornel West, “Truth Seeking, Democracy, and Freedom of Thought and Expression” (https://jmp.princeton.edu/statement).
- The survey can be found at https://heterodoxacademy.org/campus-expression-survey/
- See https://theihs.org