NAS Commends the Education Department's Protection of the First Amendment on Campus

National Association of Scholars

The National Association of Scholars commends Secretary DeVos for the Education Department’s September 9 Rule, Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities, which protects the First Amendment on college campuses.

This is an urgently needed reform. Many colleges and universities have recently announced that they are prioritizing what they call "Anti-Racism" over the Constitutionally guaranteed right of freedom of expression. Speech that academic officials deem to be “hurtful” or “hateful” is suppressed. And the definitions of hurtful and hateful typically amount to little more than speech that the campus authorities dislike. A wave of censorship that began before the Anti-Racism campaign has now intensified.

The Rule requires public universities to honor the Constitutional rights of freedom of speech, association, press, assembly, and petition, along with academic freedom, as a condition of receiving Department grants. It also requires that private universities comply with their stated institutional policies on these freedoms as a material condition of any Department grant.

The Rule also requires that public universities not discriminate against student groups that are religious in nature. Such groups must receive equal treatment—equal access to facilities, official recognition by the school and distribution of student activity fees—that is, they must be given the same rights, benefits and privileges afforded other student groups.

President Trump and Secretary DeVos clearly understand the current climate on campus: America once had the finest higher education system in the world; now, however, the conditions that produced that excellence—free thought, free speech and civil discourse—are under attack.

Instead of guaranteeing free speech rights for all, colleges and universities now often limit expression to so-called "free speech zones." Instead of thought-provoking lectures that challenge young minds, institutions now coddle students with "trigger warnings." Instead of encouraging free-flowing conversation about issues in American culture and politics, such discussions can now result in visits by thought police - also known as "campus bias response teams." And religious students who dissent from politically correct positions are often intimidated, undermined, and denied access to facilities and funds widely available to other groups, including those that advocate for secular ideologies that are as faith-based as any. In this way, religious students are effectively silenced.

The National Association of Scholars has long advocated that compliance with the First Amendment be a condition of receiving any federal funds and we are pleased that the Trump Administration has heard our recommendations and is taking steps in that direction. The current COVID crisis only underscores the importance of free inquiry as scientists must be free to follow where research leads and advise public health officials accordingly. (Additional NAS policy positions and proposals can be found in Freedom to Learn and Critical Care.)

That said, the National Association of Scholars regrets the Rule’s weak enforcement mechanism. The Rule only allows the Department to find a school in violation of the First Amendment if a court has already done so—presumably after a First Amendment lawsuit against a school has been won. This places all the burden of legal costs, efforts and time on those least able to afford it and most needing First Amendment protection, rather than on the institution. This is wrong. The institution has the obligation to comply and so the institution must be the one to demonstrate compliance.

NAS therefore urges the Department to require colleges and universities to file certificates of compliance, documenting their efforts to protect the First Amendment (a variety of speakers, neutral classes, balanced faculty, for example) as well as events where the First Amendment was threatened (“shout downs,” rescinded speaker invitations, cancelled lectures, and the like) along with the measures taken to prevent such events from recurring. NAS also urges the Education Department to instruct its Office for Civil Rights to receive, process and investigate credible complaints of First Amendment violations by schools, independent of any court action on such an allegation.

As Frederick Douglass explained, “To suppress free speech is a double wrong. It violates the rights of the hearer as well as those of the speaker.”

Without robust protection of free speech, free thought and civil discourse, education as we know it simply cannot happen. Instead, institutions become agents of thought control and indoctrination. This is the case already at far too many institutions and they therefore should not receive the support of the American taxpayer.

Thank you, Secretary DeVos, for your attention to this matter. NAS looks forward to helping ensure the free exchange of ideas in higher education so that real higher learning can again take place.

Image: Gage Skidmore, Public Domain

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