Government Must Regulate Universities to Protect Free Speech

Progressive critics insist that the campus free speech crisis is a right-wing fabrication, but the data show otherwise. In a report for the Center for the Study of Partisanship and Ideology (CSPI), I detail the substantial level of political discrimination, institutional disciplinary threat, and self-censorship that conservative, and some centrist, American faculty experience. In Britain, a similar report I co-authored for Policy Exchange helped the Conservative Party government draft legislation unveiled this past February. The U.K. proposal represents a major advance in the struggle to defend academic freedom against progressive intolerance. American lawmakers, too, should act to respond to the state of affairs in U.S. universities.

The CSPI report clearly establishes that political discrimination against conservatives and “gender-critical” scholars (that is, skeptics of fashionable gender ideology) is rife in academia. Based on eight surveys of academics and graduate students, the CSPI report replicates findings from preexisting surveys to lay down an indisputable foundation of hard data. Around four in ten American social science and humanities academics would be unwilling to hire a known Donald Trump supporter, with one in three of their British equivalents unwilling to hire a Brexiteer. Even a fraction of this level of bias against people with dissenting religious beliefs, not to mention a particular race or gender, would cause an outcry. Instead, such discrimination has become normalized.

In China, people have considerable freedom—as long as they don’t criticize the regime. In American universities, academics likewise have freedom to question received wisdom—as long as they don’t challenge the academic regime’s progressive credo of sacred verities around race, gender, and sexuality. In both cases, speech restrictions fall heavily on dissident minorities and therefore appear invisible to the contented majority. The 2 percent to 5 percent minority of conservatives and gender-critical feminists teaching in the social sciences and humanities, however, experience these restrictions as keenly felt threats that often lead to anxiety and self-censorship.

There are bright spots. Only one in ten academics supports firing controversial scholars, showing that the base for cancel-culture activism is weak among academics. Six in ten academics—mainly leftists—would not discriminate against a Trump supporter for a job. A silent majority of liberal-minded scholars does not support the woke agenda.

But the progressive commitments of most academics cause them to feel morally cross-pressured when appeals get made on behalf of the “emotional safety” of historically disadvantaged groups, making many unwilling to oppose progressive activists. Nearly half of academics neither support nor oppose the idea of cancelling controversial scholars, and only a small minority is willing actively to speak up against cancellation. And the problem of intolerance is likely to get much worse. Younger academics are twice as likely to support firing dissenters as older academics, and graduate students are three times as likely.

The upshot of political discrimination and authoritarian activism is a climate of fear. One-third of conservative academics and graduate students say that they have been disciplined, or threatened with discipline, for speech. Three-quarters of social science and humanities academics in the U.S. and Britain report a hostile climate for their beliefs. Seven in ten American conservative academics in these fields self-censor in teaching, research, and discussions. In fact, a mere 15 percent of all academics say that a Trump supporter would be willing to express this political allegiance to a colleague, compared with more than 90 percent saying that a Joe Biden supporter would be comfortable doing so.

Conservative graduate students are much more likely than those on the left to say that their views would make a difficult fit with academia, and such students tend to select out of pursuing graduate work, thereby shrinking the pool of conservative applicants to academic positions. The consequence is an increasingly homogeneous group of academics and graduate students and a feedback loop in which a hostile climate deters conservatives from academia, producing a monoculture of progressive fundamentalism far from the center of public opinion.

This is an urgent problem for policymakers. The intolerance and censorship that began on campus are now spilling out into the wider world of elite institutions, from tech firms and major news organizations to corporations and government agencies. Universities are a crucial site of struggle that will help set the tone for the wider culture of elite institutions. Policymakers at the state and federal level should push back against the tide of progressive authoritarianism and political discrimination on campus.

Two main groups, which I term “libertarian” and “interventionist,” advocate different approaches to the issue. Libertarians place their faith in cultural change, working to convince progressives and administrators that free speech is an important value that has protected the Left in the past and continues to do so on select issues, such as the study of the Middle East and Israel. Heterodox Academy, founded in 2015, is at the forefront of this intellectual project. Many liberal writers are also on board, such as those who signed a much-publicized letter in defense of free expression that ran in Harper’s. Commentators such as Helen Pluckrose and Yascha Mounk believe that a liberal Left can be mobilized to resist the illiberal Left within elite institutions.

Some libertarian-leaning thinkers, such as Foundation for Individual Rights in Education (FIRE) president Greg Lukianoff, believe that when universities are publicly ranked on free speech, these signals can shape consumer behavior and provide incentives for change. Good ideas, practices, and universities can drive out the bad without the need for government intervention, they argue, giving rise to a new academic culture that respects free speech. FIRE helps the accused with legal advice and assists in legal cases to help some of those whose rights have been violated by universities. In Britain, the Free Speech Union has recently taken up a similar role and is now branching into the United States.

Though welcoming libertarian efforts, interventionists believe that only government policy can alter the incentive structure that currently permits both hard and soft authoritarianism—overt silencing of dissenting views, and self-censorship amid an unwelcoming environment—in universities. While many interventionists ultimately aspire to build what Lukianoff terms a “free speech culture” that makes intervention redundant, they believe that sacrificing young scholars (and potential scholars) while permitting today’s campus biases to continue to distort scholarship, all in the hope that change may be forthcoming, is both unjust to the victims of this climate and a waste of society’s resources. They note that progressive illiberalism, which began to be institutionalized in the 1980s with speech codes, is now nearly four decades old and shows no signs of disappearing.

The interventionists have the better argument. Unfortunately, universities seem unable to reform from within. Self-censorship has become far more likely as dissenters seek to avoid the university’s disciplinary apparatus, leaving authoritarian structures and practices untouched. Governments should therefore act to protect the freedom of dissenting faculty and students on campus.

As my coauthors and I argue in the Policy Exchange report, lawmakers should apply a proactive strategy to safeguard academic freedom. While governments ought to respect free association and institutional autonomy to the greatest extent possible, the imperative of protecting individual liberty supersedes that of institutional autonomy.

Just as the autonomy of pre–Civil Rights universities in the South, mafia-corrupted police departments, or schools captured by Islamists had to be infringed to protect liberty, so too must the autonomy of today’s universities be limited. At the core of the problem, just as with southern segregation, corrupt police departments, and Islamist-run state schools, is an authoritarian network. On today’s campuses, this network consists mainly of far-Left activist faculty, students, and off-campus fellow travelers—all of whom prioritize “emotional safety” over expressive freedom. These groups pressure universities by undertaking social-media campaigns, filing complaints, disrupting teaching or speaking events, writing open letters, and harassing staff and students.

The Left does not possess a monopoly on such campaigns. Off campus, right-wing organizations have targeted left-wing academics through social-media shaming, calls for dismissal, or threats of violence. Politicians have also introduced state-led authoritarian measures, as with attempts in both the U.K. and the U.S. to use expanded definitions of anti-Semitism to restrict criticism of Israel.

In any case, the role of government intervention should be to enforce the laws that today’s universities break routinely. For instance, around nine in ten American universities currently maintain speech codes that violate the First Amendment. An interventionist approach would require universities to adopt the Chicago Principles, or a set of academic freedom principles that is functionally equivalent, and to remove or amend all noncompliant speech codes and internal policies. Yet such a requirement would not itself be sufficient to ensure academic freedom, as universities can simply ignore such principles in practice when they collide with cherished progressive values around emotional safety.

To be effective, legislation must mandate regular auditsof individual universities for academic freedom violations. Repeat violators would be fined. Rather than wait for aggrieved parties to go through a disciplinary process and take their university to court to get justice—with all the chilling effects this process entails for defendants and those witnessing their tribulations—regulators would actively ensure that state-funded universities obey the law. Legislation should also empower plaintiffs to circumvent university proceedings by appealing to an ombudsman in cases where their free speech was violated.

While lawmakers should keep regulations to a minimum, they must use them as much as is necessary to ensure the protection of legally guaranteed rights. Progressive activists possess a deep influence on university governance that can be checked only by proactive, vigilant, and persistent external intervention. Fines and negative publicity from audits would discourage repeated violations of academic freedom.

Pro-freedom political parties should appoint people to regulatory roles who believe in the mission of academic freedom and are willing to confront universities as needed. Regulators should apprise students and staff of their academic freedoms and rights each year to prevent universities from leaving the accused in the dark about the scope of their rights. And to prevent harassment and chilling effects, regulators should direct universities to impose time, place, and manner restrictions, enforced by security and appropriate punishments, on any protest directed against an individual member of staff that goes beyond the law to interfere with speech.

Most of the above recommendations were adopted by the U.K. government in its recent policy announcement. The new British policy designates the aforementioned ombudsman as the “academic freedom champion” and appoints this person to the Office for Students (OFS), a “sector regulator” that answers directly to the government. The ombudsman has the power to hear cases and issue binding judgments on universities, guided by law. In addition to free speech violations, plaintiffs can also bring cases related to political discrimination.

But lawmakers can do more, beginning with defanging complaint procedures, which radical-progressive networks often abuse. Even if a complaint is not upheld, the threat of investigation—as comments in my and others’ surveys reveal—chills academic freedom. As a University of Texas professor observes, a “purely defensive stance” in which the accused manages to escape sanction by their university “is a recipe for failure,” as “the process” of being accused and having to mount a defense itself “is the punishment” that ensures self-censorship. “The people who sought to limit free speech or impose political hiring criteria,” the professor writes, “are free to keep trying until they succeed.”

Universities should therefore be obliged to reject all claims that stand little chance of overriding free speech protections, and to desist from notifying the accused unless the complaint clears a threshold of likeliness to succeed. Bias-response teams or equity complaints hotlines, where they exist, should act only in cases that pass legal thresholds for interdicting expressive freedom. Reports of how often complaints have been taken forward and accusers notified, as well as the complaints’ success rates, would form part of the annual OFS audit of universities. The goal is to reduce false positives to zero, and to make free speech the starting presumption—with the burden of proof on those who would override it.

Though universities already submit to a range of government regulations, they would likely oppose these. Universities’ political tenor, and the ideological power of progressive activists and administrators within them, makes them likely to implement eagerly and maximally progressive-leaning government regulations such as the Department of Education’s 2011 “Dear Colleague” letter on sexual violence. But the same ideological forces are likely to resist free speech guidance. In Canada, for example, the university sector consistently criticizes Conservative Party premiers Doug Ford (Ontario) and Jason Kenney (Alberta), who have compelled schools to adopt policies based on the Chicago Principles. In Britain, the main academic union, the UCU, as well as the main industry association, Universities U.K. (UUK), have reacted in a hostile or cool manner to the government’s new legislation. Many public academics have joined in the chorus, arguing that government interference in the autonomy of universities is an attack on academic freedom.

But the point of the academic freedom policy adopted by the U.K. government is to make it impossible for public universities to bend to the will of ideological pressure groups—inside or outside the campus—by violating legally protected freedoms. And while U.S. federal and state governments cannot regulate private universities, which would be free to move in the direction of privileging emotional safety and “social justice” over academic freedom, lawmakers may consider attaching conditions to government-funded loan and grant programs that would similarly limit illiberalism and political discrimination. Public universities may also be able to set an example for private universities, especially if public universities came to be viewed as freer, more politically diverse, and dynamic.

The government should establish the precise tradeoff points between expressive freedom and equality considerations, which would inform guidance issued to public bodies. Legislators should clearly define terms such as racism, transphobia, and harassment through case examples that correspond to common understandings rather than critical theory. They should use objective rather than subjective and ideologically manipulable definitions of harm, applying reasonable-person rather than most-sensitive-person standards. Tradeoff points would ideally follow legal precedent, privileging expressive freedom over progressive goals rooted in subjective mind-states such as group-based emotional harm. Universities’ interpretations would be made to align with those in statute.

The Trump administration’s Title IX reforms and implementation of a “free speech hotline” were steps in the right direction. But Trump’s executive order imposing a broad definition of anti-Semitism on universities suggests that he was an opportunistic rather than principled defender of academic freedom, and it is unclear whether the salutary changes his administration enacted will survive.

Even if President Biden scraps those Trump policies that advance academic freedom, however, the previous administration’s efforts were not an exercise in futility. Politicizing free speech issues elevates them into the public eye, posing obstacles to faceless administrators or feckless regulators who aim to implement authoritarian policies. Even if a sound policy is rescinded, the rescission can form the basis for political contestation and campaigning. Pro-freedom parties need to make academic freedom an election issue and keep it on the agenda. Doing so will exact a public-opinion penalty on progressive politicians who seek to frustrate reform and empower the administrative status quo ante, convincing them that they will pay a political price if they choose to roll back policies designed to protect academic freedom.

Of course, the proposed protections for free speech would apply as forcefully to potential authoritarianism from the Right as from the Left, with the ombudsman protecting research and speech activity for those challenging both right-wing and left-wing values. Government interventions can clear the way for a bipartisan political consensus to emerge that such liberal safeguards should remain in place.

Not all interventions are justified. The politically conservative governments of Australia and the U.K. have proposed undermining the financial basis for left-wing authoritarianism by tying government funding to economically “worthwhile” degrees in science, technology, engineering, and math, while seeking to reduce the size of the social sciences and humanities through funding cuts. Whatever the economic merits of these proposals, reducing education to a commodity and making cuts to “impractical” degrees is anti-intellectual and fails to tackle the far deeper, more consequential questions of academic freedom and progressive authoritarianism.

Lawmakers should be wary of sins of omission and commission alike. Consider Canada, where some Conservative Party premiers have mandated that universities report free speech–related incidents annually to the government. This year, all Ontario universities have complied, issuing their first annual free speech reports. But these policies do not address political discrimination, and it is unclear whether universities are obligated to inform their staff and students of their free speech rights, including a right of appeal beyond the university. Ontario’s measures require plaintiffs to go first through university tribunals, and the province seems to lack the enforcement and complaint mechanisms that might properly encourage university behavior. The reforms appear not to have slowed down the spread of illiberal policies in the province’s universities.

Meantime, the ethical consistency of these policies is undermined by the Ontario government’s requirement that universities adopt the contested IHRA definition of anti-Semitism, whose prescriptions extend beyond what the law requires and thus chill protected speech. While the lawmakers laudably define anti-Semitism, rather than leave its definition elastic and subjective, the prescription is overbroad. It therefore represents a speech code, setting a precedent for expansive restrictions focused on racism, transphobia, and sexism that form the tissue of progressive illiberalism.

State governments in the U.S. have an important role to play here. Eleven states have passed laws against so-called “free speech zones” that protect speech only in a few designated areas. The Goldwater Institute’s 2017 proposals seek to audit colleges to ensure that they uphold their free speech obligations and penalize those who disrupt speech; four states have adopted them. Rolling out similar efforts across other states should be a higher legislative priority for state legislatures, as free speech debates increasingly have ramifications beyond academia.

Even so, Republicans in statehouses have often drafted legislation without being guided by a clear set of liberal principles, the boundaries of law, and a coherent plan. Some have adopted illiberal measures that undercut the cause of academic freedom—a move that ultimately hurts conservatives most. Bills such as Arkansas’s H.B. 1218, which effectively prohibits the teaching of critical race theory (CRT) in public schools and universities, represent a violation of academics’ freedom to teach and students’ freedom to choose their courses. Lawmakers in West Virginia, Oklahoma, and Maine have proposed similar bills; some Iowa lawmakers want to ban teaching of the New York Times’s1619 Project in universities; and some Tennessee lawmakers want to punish athletes who kneel during the playing of the national anthem.

It should be possible to channel these impulses in a more effective direction. Here we must draw distinctions between voluntary and compulsory content, and between universities, which teach adults, and K-12 schools, which instruct minors. Thus, it is right to terminate mandatory CRT-based diversity training, but not voluntary CRT sessions. It is fine to ban CRT and the 1619 Project from K-12 schools if they are being taught as the truth rather than examined critically alongside competing views. And it is legitimate for government directives to place some restrictions on the expressive freedom of schools, museums, and other public organizations that play a role in conserving artifacts and instilling national attachment and civic pride: the search for truth is just one of their aims. University professors, however, should have maximum latitude to criticize, teach, and research if the academy is to fulfill its mission.

Some of these new state-level proposals unduly infringe on professors’ and teachers’ academic freedom. A better legislative course of action would be to focus a ban only on mandatory training that involves CRT, with states auditing the content of mandatory diversity training to ensure that material is based on an accurate representation of the quantitative scientific literature, fining public colleges that punish staff members who refuse to attend CRT-based training, and flagging required courses to prospective students in which CRT is taught uncritically. As long as students make an informed choice, however, their freedom should be respected. Needless to say, a course in which CRT was taught alongside perspectives critical of CRT, and whose intellectual atmosphere took care not to penalize students who oppose CRT, would not need to be flagged. This more nuanced policy is in keeping with the logic of academic freedom, whereas outright CRT bans violate the principle.

Other states have overreached, despite good intentions. In 2019, South Dakota began to implement S.D. 1087, requiring universities in the state to “maintain a commitment to the principles of free expression” and to foster civil, intellectually diverse environments. The law protects student organizations from discrimination and requires that state-funded universities submit an annual report to the legislature on intellectual diversity and violations of free speech. However, the state has also urged universities to “create hiring practices to ensure the composition of the faculty and administration reflects a broad range of ideological viewpoints.” Recommendations included ongoing “surveys of the ideological viewpoints” of faculty and administrators.

This recommendation is problematic. It is illiberal for governments to issue political litmus tests for new hires, whether through diversity statements to screen for progressive orthodoxy or by mandating conservative hires. Since the wider intellectual high culture of the English-speaking West has, since the 1920s, been moving toward left-modernism, it would be unrealistic to expect the graduate students recruited to the profession, who have been inducted into this culture, to reflect the views of the wider society.

The problems on campus must be addressed in a sophisticated and coherent manner—one that always returns to the first principles of classical liberalism. Hasty statements and rash suggestions, such as abolishing tenure, damage the cause. Notwithstanding their understandable frustration, freedom-minded legislators should resist the impulse to lash out. Forensic, effective legislation can send a clear signal and, as Cass Sunstein notes in another context, change social norms, spilling over to check illiberalism in private colleges and across society. But only reforms that stem from a clear and consistent set of liberal principles can escape the charge of partisanship and begin to reverse progressive illiberalism.

The problem of progressive free speech restrictions, as Donald Downs notes, is entering its fourth decade. It cannot be compared with episodic periods of speech restriction in the recent past. After all, McCarthyism burned out relatively quickly. Today’s universities break the law repeatedly, abridging the rights of political minorities in a way that we would not tolerate for discrimination against, say, Sikhs or critics of the police. And the problem extends beyond the campus, as illiberal practices migrate to other institutions. Now is the time to act.

Conservative Ph.D.s and academics report hostile departmental environments at much higher rates than those on the left or the center. Conservative masters’ students opt not to pursue academic careers because they see academia as politically uncongenial. Study after study (including my own) shows that political discrimination against conservatives and gender-critical scholars is rife in hiring, promotions, publications, and grants. The problem can no longer be denied.

The above reforms would clamp down on political discrimination through the same mechanisms that universities use to deter and punish other forms of bias. The appeals process can help bring cases before a tribunal. The obligation of political non-discrimination would be made clear to all members of university committees and granting bodies as part of their training.

Shifting universities away from their current mission—forging communal solidarity around conformity to progressive values—would be an important step. The public, the law, and, as my research shows, most academics value academic freedom above emotional safety. Radical-progressive networks and many administrators, though, value emotional safety above academic freedom. The aim of policy should be to align university practice with the law and the public: to reorient the campus back toward an ethos that prioritizes dissent and intellectual diversity, however distasteful some may find it. External regulation that makes it impossible for universities to enforce conformity to progressivism can help change the climate that leads conservatives to believe that an academic career is not for them.

But altering the institutional framework may not be enough. As FIRE’s 2020 survey shows, low viewpoint diversity, even when campus codes favor freedom (as with the University of Chicago), leads to high conservative self-censorship. When ideological conformity takes root, as Sunstein notes, the meaning of “normal” shifts. In monolithic environments, moral extremists are empowered. The leftist ideological skew of most university faculties results in structural discrimination against conservatives. The problems of hard and soft authoritarianism on campus are therefore intimately connected to low viewpoint diversity.

This poses a trickier problem. Equity, diversity, and inclusion claims are a central part of academia’s current mission, but administrators conceive of them in progressive terms: focusing on race, gender, sexuality, and, to some extent, disability or income. Yet while these claims often underpin academic illiberalism, they are arguably permissible aims of a university, so long as they do not infringe on truth-seeking or free speech. Proponents of viewpoint diversity may therefore be tempted to frame their concerns in the same terms in which progressives frame their own causes.

Is there a proper role for government in advancing viewpoint diversity? Perhaps universities should be compelled to show an equivalence between efforts to advance progressive priorities on one hand, and to deal with political and ideological underrepresentation on the other. After all, collecting administrative information on political identity is no more illiberal than collecting information on racial or gender identity, which is already subject to nondisclosure protections.

Such a reform would permit universities to do as little or as much on equity and diversity as they like. If universities prefer, they can dial down their equity and diversity initiatives. If they wish, they could choose to promote equity and diversity. What they could not do is privilege racial and gender diversity over political diversity.

A libertarian would reject such a model, but the perfect is often the enemy of the good. The quest to remove equity, diversity, and inclusion considerations is unlikely to succeed so long as protected-categories and equality legislation are on the books. Refusing to engage with these claims clears the field for unchecked political discrimination and soft authoritarianism. Government is open to democratic scrutiny in a way that university committees are not: politicians can make free speech an issue and compel supporters of intolerance to defend their institution’s (often illegal) rules.

Institutional autonomy is important, but individual autonomy is more fundamental. Universities have embraced U.S. presidents’ executive orders on equity and diversity that comport with their progressive orientation. Often they have pushed their interpretations well beyond the intentions of the framers of executive orders, mobilizing their disciplinary apparatuses and crafting policies and codes that violate constitutional rights. To claim that government oversight of free speech compliance that seeks to uphold the law—that is, enforcing First Amendment compliance—represents an intolerable intrusion, while regulation that tacitly opens the door for institutions to break the law does not, would be hypocritical.

Perhaps pro-freedom actors could endeavor to create a larger set of privately funded social sciences and humanities institutions, free from the pressures of left-modernist conformity. As a condition of being hired, staff would agree not to engage in any dismissal, protest, or open letter campaigns against their colleagues’ speech. These institutions’ mission would be to sustain a search for truth in an atmosphere of viewpoint diversity and academic freedom, and to research topics or perspectives neglected by the mainstream. Ideally, existing university systems would incorporate these institutions, but grant them independence in their hiring and promotion—somewhat like Stanford’s Hoover Institution or the James Madison Program at Princeton, as Downs discusses.

In any case, interventions are unfortunately necessary. Democratically elected governments should use their administrative powers to enforce the law where it is currently being violated, and to strengthen due process and academic freedom protections in the same way that they tackle other forms of discrimination. Since internally generated cultural change inside institutions is unlikely except over the very long term, adopting the libertarian approach would constitute sacrificing yet another generation of dissenters and potential contributors to knowledge on the altar of hoped-for change.

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