Should States Invest in Universities That Violate Basic Rights?

Today, college and university students are facing a crisis involving their basic rights.

For decades, the highest courts of America have recognized that the Constitution broadly permits the freedom to express one’s opinions. However, this basic right that is absolutely fundamental to democracy is under attack. The right to free speech is the first and most fundamental civil liberty. It enables us to engage in social discourse and provide input on government decisions. No society that compromises free speech will ever be truly free.

The thesis of this article is simple. Lawful expression ought to be protected on college and university campuses that receive state funding.

The Supreme Court has constantly upheld the basic principle: “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828 (1995). In other words, government agencies are not allowed to restrict what a person says. The only proper restrictions are on how a person expresses their opinion. If students are allowed to post to a public bulletin board, all student communications regardless of content or viewpoint must be allowed.

These prohibited restrictions are called ‘content-based restrictions’ because they control the content of what a person says. Federal courts have not minced words when condemning this type of restriction, explicitly holding that “Content-based restrictions are presumptively invalid.” Roberts v. Haragan, 346 F.Supp.2d 853, 867 (ND Tex. 2004). According to the ACLU, “The First Amendment to the Constitution protects speech no matter how offensive its content. Restrictions on speech by public colleges and universities amount to government censorship, in violation of the Constitution.” Countless federal cases have held that only restrictions that pass the highest standards of scrutiny are permitted.

Speech codes created by university officials pose a threat to our rights protected by the Constitution. In many cases, these speech codes go far beyond the bounds of prudence, and enter the area of unconstitutionality. According to a study done earlier this year by the Foundation for Individual Rights in Education (FIRE), over 90% of America’s universities have speech codes that are either unconstitutional on their face or are phrased unconstitutionally vaguely.  Many of these schools accept public funding.

The problem is clear. American taxpayers are funding colleges and universities that actively deny basic rights to their students.

The solution is likewise clear. States have a responsibility to ensure that the colleges they invest in do not violate the rights of that state’s citizens. Consequently, states should withdraw all state investments in any college that fails to cease unconstitutionally restricting free speech. The federal government should also take the same steps.

Colleges and universities should certainly be allowed to use basic constitutional restrictions, but they’ve demonstrated their willingness to go far beyond what the Constitution permits. According to research from FIRE cited earlier, many of our colleges and universities have speech codes that are blantantly unconstitutional. They openly restrict the content and viewpoint of speech. Others have speech codes that are so vague that they can be and are enforced in an unconstitutional manner. When this happens, the college or university should be cut off from public funding.

Almost a century ago, Supreme Court Justice Oliver Wendell Holmes made the famous statement: “if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought-not free thought for those who agree with us but freedom for the thought that we hate.” U.S. v. Schwimmer, 279 U.S. 644, 655 (1929). Holmes recognized that its not enough to protect only the speech we like – free speech is meaningless unless we’re willing to also protect speech with content we disagree with.

In the words of the ACLU: “How much we value the right of free speech is put to its severest test when the speaker is someone we disagree with most. Speech that deeply offends our morality or is hostile to our way of life warrants the same constitutional protection as other speech because the right of free speech is indivisible: When we grant the government the power to suppress controversial ideas, we are all subject to censorship by the state.”

If we are unwilling to act to defend our liberties, we are complicit in the erosion of our liberties. We certainly have an obligation to protect the rights of university and college students, but if we fail to make a stand on this issue, we also compromise the integrity of our own rights.

America was built on the principle that every person should have the freedom to express their opinions freely. Our policies should uphold that fundamental founding principle, rather than encouraging its erosion. We have to act on this issue before it’s too late.

Jeremy Wang is a scholar of law with Oak Brook College of Law, having completed three years of doctorate-level study.

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