Tom Cotton & Campus Free-Speech Bill

S E E D E D   C O N T E N T

Sen. Tom Cotton (R-AR) questions David Marcus, head of Facebook's Calibra, during testimony before a Senate Banking, Housing and Urban Affairs Committee hearing on Capitol Hill, July 16, 2019. (Erin Scott/Reuters)

I am pleased to announce that today Senator Tom Cotton has introduced the "Campus Free Speech Restoration Act" (CAFSRA). Under CAFSRA, public colleges and universities that promulgate restrictive speech codes, so-called free-speech zones, and other unconstitutional speech policies will lose their eligibility to receive federal student loans and grants through the Higher Education Act. Private universities will also lose eligibility unless they both fully disclose their policies on free expression and accept contractual responsibility for enforcing those policies.

Decades of successful court challenges to unconstitutional campus speech codes and zones have failed to end these practices. With many public colleges still evading their constitutional responsibilities, it is time for the hammer to come down. Only the prospect of losing federal aid can prevent public colleges from thumbing their noses at the First Amendment.

This legislation is not a panacea for what ails higher education. The problems run too deep, and many of the most important solutions are to be found at the state and local levels, not the federal. Nonetheless, the effect of this legislation will be profound.

The very existence of unconstitutional restrictions on free expression at our nation's campuses has helped to spawn an illiberal culture that is now tearing our nation apart. Tom Cotton knows this as well as anyone — and through direct personal experience. Once public colleges are compelled to uphold their responsibilities under the First Amendment, and once private institutions are forced to accept legal responsibility for their chosen speech policies, the message will go out that our most sacred and fundamental liberties are not negotiable.

There is no substitute for a proper education in the principles of liberty. While legislation alone can never achieve that, the law is a powerful teacher. Liberal education and the search for truth around which it revolves cannot flourish where liberty of thought and discussion are denied. Cotton's bill will help to restore the very conditions upon which a liberal education depends.

Here is how the bill works:

1. The Campus Free Speech Restoration Act conveys the "sense of Congress" that free-speech zones and restrictive speech codes are "inherently at odds with the freedom of speech guaranteed by the First Amendment." Congress also declares that bias-reporting systems are "susceptible to abuses that may put them at odds with the freedom of speech guaranteed by the First Amendment."
   
   
2. CAFSRA outlaws so-called free-speech zones. It also creates a "cause of action" allowing the attorney general or any individual whose expressive rights have been violated to sue any public university that creates a restrictive speech zone.
   
   
3. CAFSRA sets up a system to consider complaints from students, student organizations, or from any other person or organization alleging that a given campus speech policy violates either the First Amendment or the ban on zones contained in the bill. In response to a student or citizen complaint, the college can either remove the policy in question, modify it, or explain why it is in fact legal. The complainant is then given an opportunity to rebut the college's defense.
   
   
4. Once a complaint has been filed and responses and rebuttals received, a three-stage review process by the Department of Education kicks in. As part of that review process, the department is authorized to conduct an investigation, if it so chooses. Up to the very end of this multi-stage process, universities are granted many opportunities to protect their eligibility for federal funding by abandoning any illegal or unconstitutional speech policies. The review process is lengthy, but don't let that fool you. In almost every case, colleges and universities with unconstitutional speech policies will modify or withdraw them long before they get close to losing eligibility for federal funding. CAFSRA is virtually designed to encourage colleges to withdraw restrictive speech policies well before facing an actual cutoff of funds. During the Obama administration a mere "Dear Colleague" letter from the Secretary of Education sufficed to scare colleges into changing their Title IX procedures. Fear of jeopardizing their eligibility for federal funding is what made America's colleges fall in line. CAFSRA will be even more effective in this regard. Unlike Obama's overreaching Dear Colleague letters, however, the CAFSRA process will be fully authorized by law. In the very unlikely event that a public university chooses to surrender its eligibility for federal funding so as to maintain an illegal or unconstitutional speech policy, students currently attending or just admitted to that university will be grandfathered in to their loan or grant packages. The burden of a loss of eligibility will thus fall on the university alone. Again, it is extraordinarily unlikely that things will ever get to that point. Once they understand that their eligibility for federal funding is at stake, public universities will swiftly abandon their unconstitutional policies.
   
   
5. The secretary of education will issue written findings during the review process explaining why a given policy violates the Constitution or the law. These findings will not prejudice lawsuits brought against the same policies. If, for example, an administration reluctant to ruffle the feathers of colleges and universities gives an unconstitutional campus speech policy a pass, that finding cannot be cited in defense of the policy in court. CAFSRA provides that any lawsuit against the policy in question would have to be conducted "de novo," i.e., from the beginning.
   
   
6. CAFSRA establishes a complaint process allowing any student, student organization, or any other person or organization to file a complaint charging that a public institution whose speech policies are under investigation has "substantially misrepresented its speech policies." The complaint can also provide evidence that a university has "withheld information requested by the secretary during an investigation, or attempted to circumvent the review process by reinstituting the policy under review in a substantially similar form without informing the Secretary." This provision protects the review process from bad faith or deception by universities.
   
   
7. CAFSRA contains a provision protecting anyone who files a complaint or participates in an investigation from retaliation by the university in question, or by anyone else.
   
   
8. CAFSRA requires private universities eligible for federal aid to disclose all of their policies pertinent to the expressive rights of students, and to accept a contractual obligation to make such a disclosure.
   
   
9. CAFSRA requires private universities to assume a contractual obligation to maintain and enforce the disclosed speech policies, and only those policies. While some state courts hold private colleges legally responsible for their claims to uphold freedom of speech, other courts do not. For the first time, then, private universities across the country will be obligated to uphold their claims to respect free expression. If, for example, a private university affirms the well-regarded Chicago Principles of Free Expression, it will not be able to disregard them when the going gets tough. Private institutions will be held to their promises in court. Could this prompt some private colleges to refrain from even promising free speech? Yes, but that would expose the truth behind the pretense, and reputational damage would rightly result.
   
   
10. CAFSRA establishes a cause of action allowing the student to sue a private college or university for violating the disclosure requirements and contractual obligations established by the previous two provisions.
    
    
11. CAFSRA authorizes any student, student organization, or any other person or organization to file a complaint against any private institution of higher education that violates the requirement to disclose its chosen speech policies and to assume contractual responsibility for both disclosure and enforcement of those policies. Should an investigation confirm the complaint, the private institution in question will be stripped of its eligibility for federal aid. As with public universities, ample opportunities to prevent a loss of eligibility are provided. In the unlikely event of a funding cut-off, loans and grants for current students and recent admits will be grandfathered in.
    
    
12. In acknowledgement of the right to religious liberty under the First Amendment, religious institutions are exempt from the requirements of the section on private institutions, just as they are exempt from Title IX.

Some will say the federal government should avoid an active role in higher education altogether, even to protect freedom of speech. Others will dismiss CAFSRA as too little, too late to save an academy that has all but abandoned the principles of liberal education. Both views are mistaken.

This bill is a limited intervention focused on the first duty of a legislature: the protection of fundamental rights. Public universities are legally obligated to uphold the First Amendment, and the Higher Education Act explicitly recognizes the importance of protecting student speech and association rights. The federal Higher Education Act's provisions on free speech (Title I, Part B, Section 112) currently convey only the "sense of Congress," but that is under the assumption that universities will fulfill their obligations to protect free expression. After decades of failure in that regard, Congress is fully justified in stepping in. As I have argued previously, the academy's free-speech failures are systemic. There is no longer any realistic prospect that reform will come from within.

It is true that eliminating unconstitutional speech codes and zones will not, by itself, solve the academy's deep-lying problems. Many of the most necessary reforms are best undertaken at the level of state trustees, rather than via federal law. Yet the rejection of free speech is at the heart of the academy's betrayal of liberal education. To lay down the law in defense of this fundamental liberty will help to shift the balance of forces vying within the academy, and in the culture at large. Assembling a winning political coalition on campus free speech will also help build support for other initiatives — moves to trim government spending on higher education and attempts to stimulate an apprenticeship sector, for example.

Is this legislation unnecessary, given the president's Executive Order on campus free speech? While we haven't yet seen that Executive Order put fully into effect, it is obviously an advantage to have a law that cannot simply be withdrawn by a new president.

Can Cotton's Campus Free Speech Restoration Act pass in the current Congress? Perhaps not, but it would be mistaken to dismiss the possibility that it might garner a significant share of Democratic support. The president's Executive Order on campus free speech was approved by over 70 percent of the public, including many independents and Democrats. Should Democrats reject this bill, moreover, it would be entirely legitimate to make it an issue in the upcoming presidential and congressional elections, and thereafter.

Comments

Tom Cotton understands the new cancel culture from the inside, having seen the New York Times go to war with itself over the perfectly legitimate decision to publish his op-ed on the use of force to quell riots. With hostility to free speech migrating from the campus to the culture at large, America's civil peace is now at risk. Given our fraying commitment to liberty, an energetic effort to pass Cotton's campus free-speech bill will do wonders — not just for our college campuses but for the country as a whole.

In short, Tom Cotton's Campus Free Speech Restoration Act is at the leading edge of the fight to restore liberty and constitutional principle to our college campuses — and to our country. Cotton's bill should, and likely will, spark a major national debate.