US Republicans float free speech on campus bill

House Republicans are seeking to end the use of “political litmus tests” at public colleges and universities in a wide-ranging bill that aims to ensure students’ First Amendment rights are protected. Institutions that do not comply would face a serious penalty – losing access to federal financial aid for a year.

The “Respecting the First Amendment on Campus Act” is the third in a series of GOP bills aimed at updating the Higher Education Act of 1965. So far, Republicans on the House Education and Workforce Committee have considered bills that would overhaul the financing of higher education and require colleges to report more foreign gifts. With this latest measure, lawmakers are turning their attention to what they see as the “long-standing and pervasive degradation of First Amendment rights” on college campuses.

“Occurrences like shout downs from angry mobs, disinvitations of speakers, and ‘cancellations’ have become commonplace at our colleges and universities, often because taxpayers are forced to subsidize woke faculty and administrators,” the bill summary says. “This trend threatens students’ constitutionally guaranteed rights at a public institution and the ability of campuses to maintain a civil educational environment.”

Republican Virginia Foxx, the North Carolina representative who chairs the House Education Committee, co-sponsored the bill with New York representative Brandon Williams. Ms Foxx and the committee have regularly criticised the state of campus free speech over the past year, arguing that colleges are hostile to conservative speakers and have double standards in what speech they will allow. The legislation, its authors said in a joint statement, will address the issue by ensuring that students are educated about their rights and by requiring concrete, transparent campus free-speech policies.

“We’ve seen countless examples of institutions leveraging taxpayers’ dollars to fan the flames of illiberalism, intolerance, and radical ideology amongst students and faculty,” Ms Foxx and Mr Williams said in a joint statement. “Americans’ confidence in postsecondary education is at an all-time low, and rightly so. While there are several factors contributing to this national sentiment, one of the most important is institutions’ inconsistency in protecting the First Amendment rights of students and faculty.”

Most of the bill’s provisions apply only to public colleges that receive federal financial aid, because those institutions are required to follow the First Amendment. But private colleges would also have to disclose their speech policies to students, faculty and the Education Department annually. And, like public institutions, they would be compelled to allow single-sex social organisations.

If institutions fail to disclose their policies, the department could revoke their access to federal financial aid. Additionally, if a court rules – as part of a civil lawsuit – that a university violated any requirement in the bill, that university could become ineligible for federal financial aid.

The bill encourages, but does not require, institutions to adopt the Chicago Principles for free expression, which say in part that universities should not “attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive”.

Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression, a free speech and civil liberties advocacy organisation, said the Chicago provision was a “great first step”. So, in his view, is the bill’s ban on policies that require students or faculty to make statements in support of diversity, equity and inclusion or “any political ideology”, as stated in the legislation. Overall, Mr Coward said, the legislation, if enacted, would strengthen free speech rights for students across the country.

“There’s a lot to like,” he said. “It shows that Congress is serious about tackling these pervasive problems that we still see in institutions. Institutions still maintain a lot of policies that violate their students’ First Amendment rights, and this would certainly put an end to a lot of those.”

But Jon Fansmith, senior vice-president for government relations and national engagement at the American Council on Education, said the legislation was not “helpful” and that it would hamstring universities’ ability to shield students from hate speech.

Public colleges and universities, under the bill, would not be able to prevent any person from “freely engaging in noncommercial expressive activity on campus”, so long as their conduct is lawful and taking place in publicly accessible outdoor areas of campus.

Mr Fansmith said that would give public institutions “almost no ability” to limit speech, even if it is considered hateful. The numerous changes could make it more difficult, he said, for colleges and universities to combat antisemitism and safeguard students’ rights under Title VI of the Civil Rights Act of 1964, which requires federally funded institutions to protect students from discrimination based on race, colour or national origin.

Republicans on the committee have been critical of how universities responded to the spate of antisemitism incidents since October as well as their handling of protests criticising Israel.

“It is striking that at a time when the committee’s spending so much effort and attention and focus on protecting students from harmful or hateful speech…that they’re also proposing a bill that would limit almost any ability of an institution to protect those students from that kind of speech,” Mr Fansmith said.

In addition to the free speech measures, Ms Foxx and Mr Williams’ bill would codify a Trump-era rule that protected the right of religious student organisations to set their own policies. The Biden administration has proposed rolling back that provision because of concerns that it could allow religious student groups to discriminate against vulnerable and marginalised students, such as LGBTQ+ people.

The bill also would give student organisations new protections. For example, an institution would not be able to deny a student group recognition if it could not find a faculty sponsor. And the measure adds parameters to the security fees charged to a student group in connection with a speaker or event. Conservative student groups have said over the years that security fees can have a chilling effect on their speech because they have to pay more when they bring an allegedly controversial speaker to campus.

“Those sorts of fees are unconstitutional,” said Mr Coward at Fire.

Under the legislation, public universities would not be able to consider the “anticipated reaction by students or the public to the event” in deciding how much to charge in security fees. They also would have to establish “content- and viewpoint-neutral standards” outlining how they protect invited speakers and guests, according to the bill.

Mr Fansmith said prohibiting colleges from taking the likely reaction to an event into consideration was “nonsensical,” adding that it would be impossible for colleges to protect students’ civil rights while permitting unfettered free expression.

The bill, he said, is “dictating institutional practice when these are already really complicated situations that involve numerous factors that aren’t easily understood and that vary based on a case-by-case basis”.

This is an edited version of a story that first appeared on Inside Higher Ed.