Sessions Calls for a “National Re-Commitment to Free Speech on College Campuses”

On Tuesday, Attorney General Jeff Sessions sharply criticized what he considers incidents of college and universities suppressing free speech, creating “echo chambers” on campus, limiting student expression to “free speech zones,” and allowing protestors to shut down speakers they disagree with by using threats of violence.  While comparing mask-wearing, so-called, “anti-fascist” activists to members of the Ku Klux Klan, Sessions remarked that freedom of thought is under attack on campus and pointed to incidents at Middlebury and the University of California, Berkeley as examples.  Most of the speech was dedicated to recognizing what the AG views as problems on campus, but, significantly, the address indicated the DOJ’s interest in, and attention to, addressing issues of campus free speech and expression.

Outside the speech venue, faculty and students at Georgetown Law School amassed on the school’s steps to protests the AG’s appearance, including taking a knee in solidarity with the NFL players who did the same over the weekend.  Many of the protestors spoke as well, remarking that their actions were a protest against the “chilling of speech” represented by Sessions and the Trump Administration.

In the most important part of the address, Sessions announced that the Department of Justice would step up its efforts to become more involved in campus free speech cases.  That effort included the DOJ filing a Statement of Interest (SOI) in Uzuegbunam v. Preczewski.  In that case, a student is challenging the free expression policies of Georgia Gwinnett College.  The student alleges that the college’s speech policies restrict student expression to “free speech zones” on campus and forbids any expression “which disturbs the peace and/or comfort of person(s)” on campus.  The student, Chike Uzuegbunam, wanted to speak with other students about his religion, but was requested to confine his activities to the campus’ free speech zones.  After meeting the request, college officials ordered him to stop after deeming his actions to be “disorderly conduct” that violated the college’s policies against  “the peace and/or comfort” of others.

The DOJ’s SOI argues that the student’s allegations sufficiently represent a violation of his First and Fourteenth Amendment rights, indicating that the college’s speech policies were not content neutral, established an impermissible “heckler’s veto,” and were not narrowly tailored to achieve a compelling governmental interest.  The AG added: “A national recommitment to free speech on campus and to ensuring First Amendment rights is long overdue.  Which is why, starting today, the Department of Justice will do its part in this struggle.  We will enforce federal law, defend free speech, and protect students’ free expression.”

The reaction to Sessions’ remarks has been mixed.  The Foundation for Individual Rights in Education applauded the remarks, while PEN America criticized the AG for failing to mention recent incidents of “hate speech and hate crimes” on campus in his address.

Moving forward, it is unclear whether the remarks signal a major policy reorganization at the DOJ or what a “national recommitment” could mean for current campus controversies, such as faculty speech and academic freedom issues, as well as uninvited, outside speakers like Richard Spencer and others requesting space on campus. (See our blog post on this issue here.)  It is clear, however, that the DOJ has taken an interest in campus speech issues and colleges might be well-served to review their student expression policies.

Confronting the Past, Preparing for the Future: Best Practices for Colleges with Controversial Statues on Campus

Silent Sam

Written with Debbie Osgood

Over the past few weeks, colleges across the country have been confronting an issue that vexes even the best academic: the past.  Colleges from Texas to North Carolina are grappling with the issue of monuments and statues that, to some, glorify a racist past in American history.  While there are convincing arguments on both sides—leave the statues up, take the statues down—college administrators must deal with this issue with sensitivity, attention, and nuance.

One of the authors of this post is connected to this issue more than most because he is not only an attorney, but also a practicing historian, who studies and regularly lectures on the American Civil War.  After looking at the issues, and drawing upon our collective experience, here is what HMBR believes are the best practices colleges can employ to deal with this issue:

  • Taking a Systematic Approach to the Past

Studying the story behind the statue can provide historical context to the statue’s meaning.  Institutions that have investigated why their statues were originally commissioned, who commissioned the statue, and what their intent was, have found that the additional historical information has contributed to the college community’s understanding of the statue and helped better place it in the proper context.

  • What Did the Statue Represent When it was Erected? What Does It Mean Now?

Beyond studying the original intent behind the statue, it is important to study the “life” of the object.  As important as the first meaning behind the statue is, it is equally important to place the statue in its proper, lifelong context.  This analysis can lead to interesting conclusions about what connections exist between the college’s culture, the students, faculty, and community who live and study in the presence of the object, and how their experiences have evolved over time.

  • Concerns over Vandalism and Security

Recently, colleges confronting this issue have encountered the very real concerns of vandalism and exorbitant security costs.  Many of these colleges have decided that the costs are too high and have decided to sequester the statues elsewhere, such as in the library archives or in storage.  While some colleges have chosen to cover statues to protect them from damage, some have reached out to off-campus law enforcement for support.  Colleges are finding, however, that they cannot always rely on outside partners for assistance on these issues.  If the college cannot reasonably bear the cost of securing the object, protective measures, such as fences or cameras, can often be employed in the short-term while policy is being formulated.

  • Review State Statutes on Statues

Many states, especially in southern states, have passed legislation restricting whether public institutions can remove statues from their grounds.  Colleges need to keep themselves informed on these laws and whether amendments or changes are being made to address contemporary crises.  These laws can create additional levels of notice and approval, and potential liability, no matter what institutions decide to do.

  • Consider Possible Constitutional Implications

Public colleges will want to carefully consider any constitutional implications of their actions related to confederate monuments.  Are confederate symbols, including the flag and monuments, a form of free speech protected by the First Amendment of the U.S. Constitution? Or are they a form of government speech and not subject to the Free Speech Clause?  In its recent case involving a band named “the Slants”, the U.S. Supreme Court cited the posters produced by the federal government during World War II to promote the war effort as an example of government speech that is not required to be viewpoint neutral.  Matal v. Tam (June 19, 2017).  Are confederate monuments akin to war posters?  The context of the college’s relationship to the monument at issue (is it a state-owned monument? Is it on state land?) will be critical in evaluating the constitutional considerations.

  • The Statue and an Institution’s Values

Once the review of the history and context is complete, the college should consider whether the statue, and the way the university has come to understand it, comports with the institution’s values.  While it is easy to see why statues honoring Confederate statues could be offensive to some students and community members, and, on the other hand, why the unceremonious removal or damaging of the statues could be offensive as well, the unique way that your institution decides to treat the statue can provide context, understanding, and meaning beyond what advocates from either side would present.

 

While this issue can bitterly divide a college campus, it does not have to.  With the proper context, study, and attention, a college can navigate through this politically sensitive issue without dividing their institution’s members, while also paying respect to the American past and the unique identities of their students, faculty, and college community.

The Uninvited Speaker On Campus: Successfully Dealing with an Increasing, and Troubling, Trend

Over the past few months, it has become more and more common for high profile racist and neo-Nazi groups to attempt to rent space for rallies and lectures on college campuses.  One of the leaders of the so-called “alt-right” movement, Richard Spencer, recently told the Houston Chronicle that he plans to hold even more rallies on campuses across the country and that his group is currently figuring out “the right model” to hold the speeches. Spencer has also said that he deliberately targets college campuses because of the attention it draws and the size of the audiences, in favor and against, that the events attract.

Emboldened by a court victory that forced Auburn University to allow him to speak on campus, Spencer’s organization contacted the University of Florida with plans to rent space on campus in mid-September.  Despite having a policy that allows for the rental of its facilities by outside groups, UF denied the request, citing the safety risks to the campus and community following the violence in Charlottesville, Virginia.

Spencer and his organization’s representatives have said they will sue for their right to speak at UF, likely to rely on similar arguments made prior to the event at Auburn, such as unlawful viewpoint discrimination by a public entity.  So, what is a college to do if they are approached by Spencer or a similar organization? (Note: These observations are directed at public institutions and may not necessarily reflect the advice HMBR would give to private institutions.)

First, it is important for the college to consider what kind of unaffiliated, non-invited speaker policy is right for them.  If the college views it as an integral part of their mission to be open to the entire community, then the college should enforce a viewpoint neutral approach to those who request rental space for their events.  While this can at times be a challenging position to take, especially when considering the safety and well-being of students who may feel targeted by the speech, a college that views itself as an open forum for all perspectives may find that this approach is right for them.  In addition, it provides the college with the opportunity to hold alternative events to counter the hateful rhetoric and show campus solidarity with targeted groups.

As an alternative, in the wake of recent controversies, some colleges have revised their outside speaker policies.  These colleges, that previously allowed their spaces to be rented by anyone, have decided that the possibility of an uninvited hate group requesting campus space is too dangerous and too damaging to the college community and have placed viewpoint neutral restrictions on access to their facilities.

For example, after a visit from Spencer in December, Texas A&M made its campus off-limits to outside speakers and groups lacking any affiliation with the university.  Under the revised policy, outside speakers must be sponsored by a recognized student organization that assumes “responsibility for any unpaid costs or property damage associated with the event.”

Even with the new policy in place, and still without a faculty or student organization sponsor, Spencer and his organization requested outdoor space at A&M for an event scheduled in September, directly challenging the new policy.  A&M has denied the request, citing the potential for violence on campus and the disruption the event would cause to class schedules and faculty, staff, and student transportation.

In some cases, colleges have sought to keep hate groups off campus by citing the possibility of violent responses to the event.  For example, an event scheduled by Spencer and his organization at Michigan State University was cancelled earlier this week.  MSU cited the tragic violence in Charlottesville and the threat to public safety on campus as their main justifications for cancelling the event.

However, this approach might not rescue the college from the possibility of holding these events.  As Professor Geoffrey R. Stone at the University of Chicago Law School points out, the Supreme Court has recognized the danger of the “heckler’s veto,” stating that “the government’s responsibility in these circumstances is to control those who threaten violence, rather than sacrifice the speaker’s First Amendment rights.” Citing Whitney v. California, Stone writes that “even the fact that speech is likely to result in ‘violence or in destruction of property [that] is not enough to justify its suppression.’”

On the other hand, there are some legal experts who argue that, given the recent events at UVA and elsewhere, colleges may be able to successfully argue that the potential of violence on campus, and the group’s connections to prior violent events, is great enough to justify the rejection of these events.

The possibility of an “alt-right” speaker coming to campus puts a college administrator in a difficult position, but not one without options.  If the college fears the possibility of a hate group renting space on campus and causing a major disruption, then a revision of their policies might be best.  On the other hand, if the university believes that an “open door” policy toward outside speakers is beneficial and in keeping with their mission—and that the remedy of bad speech truly is more speech—then they should enforce their policy in a content neutral way.

Managing the Speakers and the Stage: Best Practices for Free Expression on Campus

Last Friday, as a preamble to their violent marches and rallies in Charlottesville, VA, neo-Nazis descended upon the University of Virginia.  Carrying torches, around 300 individuals marched through the heart of the UVA campus and towards the Rotunda, the venerable center of the university.  While surrounding the statute of Thomas Jefferson, violence broke out and a number of students, faculty, and staff were injured.

The incident is a reminder that colleges need to be prepared.  Some universities find it difficult to balance campus free expression with maintaining the safety and security, physical or otherwise, of their community members.  The following are examples of “Best Practices” that HMBR has identified to serve institutions seeking to manage the stage and the speakers on it.  Note: Although most private colleges have statements affirming free speech rights on their campuses, the following best practices are applicable at public institutions and do not necessarily reflect the guidance we would provide to private institutions.

  • Make Your Commitments Clear

Having a firm free expression statement demonstrates that your institution is committed to free speech, student expression, and an environment that fosters the free exchange of ideas in the pursuit of academic truth.  The statement should acknowledge your institution’s awareness of, and sensitivity to, at-risk communities and communities that could potentially be targeted by controversial speakers. The college should also make clear its commitment to holding students accountable when expression turns into behavior that violates the student code of conduct and endangers the safety of the college community.

  • The Impartial Referee

Restrictions placed upon the content of a speech are almost always struck down by the courts.  It is important that, when it comes to attempting to regulate speech on campus, the college remains viewpoint neutral.  This does not mean that the college cannot set ground rules for groups and individuals invited to speak on campus.  Acting like a referee allows the college to set reasonable restrictions on expression, as long as both sides are held to the same standard.   The areas where the college should always remain content neutral include: time, place, and manner restrictions; access to campus facilities, such as lecture halls or theatres; and event security or facility rental costs.

  • Relationships Can Foster Creative Solutions

Establishing an environment of civility on campus begins with building relationships across a number of college communities.  Campus administrators should have working relationships with student leaders—such as student government associations, student groups associated with political parties, etc.—long before a group invites a controversial speaker to campus.  These relationships can foster alternative, less provocative courses of action that can still allow the student organizations to achieve their legitimate goals while lowering the temperature of the community.

  • Having a Plan

After the incident at UVA, the university president remarked that she was grateful that UVA had an emergency plan, drilled mock disasters in the past, and that they were ready when the time came to put the plan into action.  Beyond an emergency plan, however, the college should have clearly articulated, step-by-step, viewpoint-neutral processes for student organizations to bring speakers onto campus.  Training incoming student leaders in these processes and making sure that they understand the required procedures can save the administration many headaches in the future.  Even if the neo-Nazis at UVA were not an invited group, these practices can be bulwarks against unwanted, but invited, speakers and provide opportunities for alternative arrangements to be proposed.

  • Logistics Are Key

Choosing the venue for the speaker is a significant detail that can sometimes be overlooked.  A large room, away from dormitories, health facilities, or classrooms and with easy access in and out, is often the best option.   It is important to consider potential contingencies as well, such as accommodating larger than expected audiences, giving space for the presence of protestors, and making sure emergency personnel have easy access to the facility should the unthinkable happen.

  • First Duty Should Be Safety

Perhaps the most important part of the administration’s duty to their students, and the college community at large, is to provide a safe learning environment for all.  Sometimes, that environment can be compromised and the college should be prepared.  Law enforcement should be relied upon for security judgments, but it is almost always better to err on the side of protecting the health and safety of the college community.

  • The Antidote to Bad Speech: More Speech

Having legal, effective, and non-disciplinary responses to offensive speech can often be the best answer to these controversial events.  However, it is important not to mischaracterize otherwise protected speech as actionable conduct.  Despite some misgivings about offensive speech, the college is not required to provide an “offense-free” environment.  On the other hand, colleges have successfully organized counter-events when offensive speakers are brought on campus.  Concurrent events or alternative presentations can provide students with opportunities to counter the hateful rhetoric that they oppose, while granting them a forum to express their own opinions as well.

 

As the UVA president said afterwards, the neo-Nazis marching on campus was a nightmare scenario and one, hopefully, most college administrators will never face.  But if a college is committed to creating an environment of free expression for all, there are best practices that the college can employ to ensure free expression is guaranteed in a safe, welcoming, and academically vibrant community.

Welcome to the New Higher Ed Law Blog!

Another school year is just around the corner.  Students will return to their dorms later this month.  Professors are busily putting the final touches on their syllabi and finishing off summer writing projects.  Administrators are hurriedly planning budgets, forming strategies, and seeking guidance on what may lie ahead for the new academic year.

Here at the Education Practice at HMBR, we are planning our own new “school year,” of sorts.  We have restarted our Higher Ed Law Blog!  We look forward to using these pages as a way to connect with you and keep you informed.  We plan on bringing you news pieces, hearings announcements, conference recaps, and analytical pieces to keep you up to date on the latest developments in higher education and to give you the advantages you need to thrive in an increasingly competitive marketplace. We also expect to start posting on the connection between higher education and related topics, such as labor, healthcare, and others.

As you read our blog, you can continue to rely on HMBR’s deep knowledge of, and multi-disciplinary approach, to higher education, drawing on our experience working in the private as well as the public sector.  We continue to be passionate about higher education and helping you achieve your academic, business, and institutional goals.

To get started, here is a list of developments that we are monitoring for the upcoming academic year as well as some suggestions about how we can help you navigate these issues:

Title IX Guidance – As has been widely publicized, the U.S. Department of Education is considering whether and, if so, how to revise its guidance on sexual harassment and sexual assault. While we cannot predict exactly what any new guidance will say, we recommend that your institution be ready with a proactive strategy for communicating to your community your values and commitment to compliance and fairness for all parties.  If the Department does issue revised guidance, we will send out a newsletter to you explaining the changes, offering new training sessions, and providing you with a path forward in this latest era of Title IX enforcement.

Academic Freedom and Free Speech – Most experts are predicting another year of high profile free speech controversies on campus. These eruptions can lead to unwanted publicity and disruptive campus upheaval that can negatively impact an institution’s public image and reputation.  However, with the right policies, colleges can continue to be a place where free expression is respected and all community members feel valued.  HMBR is well-equipped to provide training sessions on academic freedom and free speech issues as well as to provide comprehensive reviews of your campus policies and to assist you in writing new policies or handling specific incidents as they occur.

The Janus Case and Labor Issues – The Supreme Court is likely to hear a challenge that could put an end to the practice of public sector unions charging fees to non-members. The impact of the case could greatly reduce public sector unions’ political authority and potentially have a lasting effect on collective bargaining agreements for public institutions.  In addition, the movement to unionize adjunct faculty and graduate students is showing no sign of stopping.  HMBR offers a team of attorneys experienced in representing labor unions and management in a full range of labor and employment matters, providing our clients with well-informed perspectives that address complex legal and regulatory requirements as well as your critical business demands.

Additional Issues – New and Revised Financial Aid Regulations; Accreditation Issues and Program Modifications; Undocumented Students, DACA, and “Sanctuary Campuses”; Student Demographic Changes and Its Impact on Populations and Services; International Student Recruitment and Support; Advances in Education Technology and Delivery Systems

 

HMBR is uniquely positioned on all of these topics and more.  We are true problem-solvers with the experience, knowledge, and ability to provide you with comprehensive legal representation to help you successfully overcome the hurdles your institution faces.  While the new academic year will definitely have its share of challenges, our attorneys routinely assist clients in structuring and executing a wide range of creative solutions that assist colleges and universities in moving forward and achieving their institutional goals.

We look forward to keeping you informed here at the Higher Ed Law Blog.  If you have any questions, concerns, or would like us to post on a topic of interest to you, please feel free to contact us.

Here’s to a successful 2017-2018 Academic Year!