SAVING CAMPUS SPEECH

THIS summer, Rep. Greg Murphy (R-NC) introduced the Campus Free Speech Restoration Act, designed to enhance free expression in American universities. Murphy’s bill defines “expressive activities” to include peaceful assembly, speaking and listening, and protects them from “improperly restrictive” institutional incursions, such as speech codes, bias response teams and “free speech zones.”

It’s sad that such legislation is needed, but college is now a place where free inquiry, free speech and intellectual growth are imperiled. Surveys show many professors and students now self-censor for political reasons. A punitive progressivism has become dogma, and vague harassment policies, zealous students and ideological administrators chill dissent. Laws such as Murphy’s can help, but it’s vital to get the details right.

Public universities, legally subject to the First Amendment, get away with unconstitutional practices when authorities fail to respect and enforce the law. This is because no constitutional provision is self-enforcing.

To give it effect, an injured party must sue a school. But after filing suit, that party often endures years of “lawfare” — stonewalling, appeals, trials, retrials and remands — that public universities, with taxpayer funds and lawyers at their disposal, greet with a yawn. All too often, individual lawsuits against universities are simply pebbles thrown against the citadel.

Murphy’s bill addresses this problem with two innovations. First, it authorizes the Department of Education to condition Title IV federal funding on First Amendment

compliance at public schools.

While the bill doesn’t specify how this would be implemented, it could easily appear alongside other long-standing nondiscrimination requirements. The condition could also be the subject of an independent, annual certificate of compliance, to be filed with the Department of Education. The certification would force schools to document their efforts to protect free expression, record where and when it was threatened and list measures taken to prevent such events from recurring.

Second, the bill creates a new position in the Department of Education to oversee the status of free speech on campus and to enforce the First Amendment, independent of time-consuming and expensive litigation. This official would investigate credible complaints of First Amendment threats and would be authorized to impose penalties.

While the bill is a good start, practical questions remain. Since the Department of Education’s finding of noncompliance would remain reviewable by a court, does the bill’s new federal review simply impose an extra bureaucratic layer on complainants? And: Won’t this new official inevitably follow the policies of the administration in power? Plus, given that schools often cave soon after a complaint is filed by withdrawing a contested policy — only to reintroduce it at a later date — how will the law prevent backsliding?

Modifications to the bill could account for some of these concerns. The legislation could further empower the department to conduct random audits on campuses to ensure that a school’s culture, policies and enforcement practices are First Amendment–friendly. The new office need not wait passively to receive complaints, but instead proactively inspect premises.

The bill could also authorize the official to bar the problematic policy or action when a complaint makes a reasonable case of a likely violation. The burden of proof at this early stage would be intentionally low: in favor of the complaint and of free expression.

This would help level the lawfare playing field, signal the importance of the First Amendment in the academic setting and recognize the reality that institutions of higher learning no longer deserve the benefit of the doubt on speech issues.

Finally, the bill should require the Department of Education to notify a school’s regents or trustees of any complaint, investigation or injunction, as well as the associated costs. The board can then communicate with state legislators to deduct such costs from the school’s annual budget — which would, of course, be refunded or reappropriated should a final judgment exonerate the school.

Taken together, these provisions would ensure that the institution bears the cost of likely constitutional violations — not the individual and not the taxpayers. With time and some tinkering, Murphy’s legislation could be an important step toward rescuing American higher education.