In last week's column, I described how the national anti-free speech movement poses an imminent threat to freedom of expression in American academia.
Those advocating for the anti-free speech movement attempt to interpret the "language of free speech" to their advantage so that it applies only to them, but not to others. Their analysis often cites Title IX's antidiscrimination provisions and accuses free speech advocates of using "weaponized words" to silence anti-racism protestors, but invariably ignores the long history of court decisions that have repeatedly applied First Amendment protections to offensive speech at public universities.
The Foundation for Individual Rights in Education (FIRE) has had tremendous success with its Stand Up For Speech Litigation Project, which its website describes as "a national effort to eliminate unconstitutional speech codes through targeted First Amendment lawsuits."
The Los Angeles Times described FIRE's work as "the first-ever coordinated legal attack on free speech restrictions in higher education."
While the Supreme Court's decisions interpreting the First Amendment apply only to public universities, it is vital that we also protect the core values of freedom of expression at private colleges. How can this be accomplished?
One solution whose time may have come is for Congress to pass legislation that withholds federal funding and tax exemptions from private universities that fail to adopt freedom of expression standards consistent with the U.S. Constitution.
Another option would be to rely on what Supreme Court Justice William Brennan called "the independent protective force of state law." The high court has held that states may provide greater protections for free speech in their own constitutions, statutes and common law than those found in the U.S. Constitution.
Indeed, a number of state supreme courts have ruled that free speech provisions in their own constitutions have more expansive protections than the U.S. Constitution. In some cases, the state supreme courts have applied those free speech provisions to expressive activity that occurs on private property.
In 1992, California adopted Leonard Law — the only one of its kind in the country — which applied the same free speech protections to high schools and private colleges as those that apply to the community as a whole under the U.S. Constitution. Free speech advocacy groups should consider launching a coordinated national public policy campaign to pass a Leonard Law in each state.
Some state supreme courts, such as Connecticut's, have allowed students and faculty at private universities, like Yale, to use breach of contract lawsuits to enforce promises found in promotional materials, official policies, handbooks and regulations.
For example, Yale's website informs current and prospective students "that when you agree to matriculate, you join a community where 'the provocative, the disturbing, and the unorthodox' must be tolerated."
According to the school's undergraduate regulations, which students are required to comply with as a condition of enrollment, "every member of the University has an obligation to permit free expression," and that "no member has a right to prevent such expression."
The undergraduate regulations also acknowledge that "every official of the university ... has a special obligation to foster free expression and to ensure that it is not obstructed," further warning that "this obligation can and should be enforced by appropriate formal sanctions."
To its credit, Yale reaffirmed its freedom of expression policy earlier this month when it refused student demands to remove professors Erika and Nicholas Christakis from their administrative positions after Erika sent an email defending free speech rights and informing students that they should be able to tolerate offensive Halloween costumes.
But in 2009, Yale College Dean Mary Miller banned the sale of a T-shirt inspired by the school's football rivalry with Harvard after receiving complaints that its design included a homophobic slur attributed to an F. Scott Fitzgerald quotation: "I think of all Harvard men as sissies."
Apparently, Miller felt that the offense brought on by the word "sissy" — an archaic gender-neutral noun synonymous with weakness — superseded the offending students' rights to freedom of expression. Either Miller hadn't read Yale's freedom of expression policy, didn't understand the policy or simply ignored it.
In a recent Wall Street Journal column, L. Gordon Crovitz cited the University of Chicago's adoption of a similar policy on freedom of expression, which was drafted by a committee formed "in light of recent events nationwide that have tested institutional commitments to free and open discourse."
Crovitz explained, "Purdue and the Princeton faculty have voted to adopt the Chicago principles," noting that FIRE "is encouraging other universities to sign up."
In any event, one thing is clear: University administrators, students and free speech advocates must be prepared to aggressively and consistently enforce all available legal and administrative remedies to protect free speech on campus before it's too late, and there is no longer any free speech left to protect.