This month, South Dakota became the latest state to see Republican legislators propose a bill requiring public universities to implement pro-free speech policies. The intention of such efforts to make campuses hospitable to free inquiry is admirable, but these bills are likely to cause more problems than they solve.
South Dakota’s bill prohibits the use of restrictive “free speech zones” and requires public universities to publish annual reports on steps taken to improve intellectual diversity on campus. The bill is part of a growing trend. Five states have already passed similar bills, and there are more in the pipeline. Colorado’s bill also prohibits the use of free speech zones. Tennessee does the same, in addition to introducing a more restrictive definition of “harassment” and prohibiting universities from revoking invitations to speakers. Virginia's simply reminds universities that they can’t abridge the First Amendment rights of their students, faculty, employees, and guests. And North Carolina, using model legislation from the Goldwater Institute, mandates teaching students about free speech during orientation and requires punishments for those who interfere with the speech of others. It would also create a “Committee on Free Expression” to oversee it all.
Some bills sought to go even further. In Iowa, Republican legislators proposed a bill that would block public universities from hiring any professor whose political party is already in the majority on the faculty by at least 10 percent. And the North Carolina bill dropped an earlier provision that would have required the university to maintain “institutional neutrality with regard to political or social issues.”
Each bill is different, but they all originate in the perception that universities have become ideological echo chambers, inhospitable to speech from the Right. This perception is grounded in some verifiable facts. Over the last few decades, university faculties have been steadily moving to the Left and shedding conservatives. In 1990, university professors were 11 percent more liberal on average than the rest of the country, but by 2013, the gap had tripled to more than 30 percent. The problem is especially pronounced in the humanities and social sciences. For example, among history professors, registered Democrats now outnumber registered Republicans at a rate of 33.5 to 1, and a sample of 325 prominent social psychologists revealed a grand total of eight that identified as right-of-center.
So if viewpoint diversity is cratering in academia, why not use legislation to support it? There are a few good reasons to be skeptical.
The first is grounded in the psychological principle of “reactance” — people tend to do the opposite of what they’re told if they don’t trust the source of the command. Republican legislatures that require universities to institute certain policies are likely to stir up new opposition to those policies, and to the goal of viewpoint diversity. Progressive professors and administrators will operate on the principle that if a Republican likes it, it must be bad. That may be irrational, but it means that the approach threatens to kill whatever movements are growing on campus for pro-speech policies.
That wouldn’t matter if those movements didn’t exist, but increasingly, they do. Many universities are beginning to take steps to address the problem internally. A growing number of universities have endorsed the Chicago Principles, a statement on the value of free expression created by a University of Chicago faculty committee. And Heterodox Academy, an association of university professors concerned about the lack of viewpoint diversity in academia, has grown its membership by nearly 300% in the last year. It now has over 1500 members, evenly balanced between Left and Right.
These organic movements need to be encouraged, not made mandatory by Republican legislators. When social change is mandated by a top-down command, the resulting system is fragile. It has little authentic buy-in from essential stakeholders and it can be easily reversed by future legislatures. Durable social change comes from the bottom up. It happens when citizens are moved to action by a vision of the truth, not a threat of punishment.
This points us toward the second reason to be skeptical of the legislative route: it reproduces the problem it attempts to solve. Free speech is threatened on campus because students have been taught to seek authoritarian, administrative solutions to social frictions. Hardier, more autonomous students of previous eras might have talked through disagreements and feelings of offense, but today’s students demand Bias Response Teams, heavy-handed diversity training, and other top-down methods to police their social interactions. There’s a clear connection here with Jonathan Haidt’s observation that the current generation of students grew up with an unprecedented lack of unsupervised play time, and have been socialized to run to a grown-up for help.
So what do these bills do? They reinforce the message that when a community is having trouble navigating competing truth claims, you go outside the community and find an authority figure to put his foot down. The social justice set will get the message. They’ll make sure to have bills of their own at the ready for the next time they get control of a state legislature, and they’ll design administrative countermeasures to resist at the campus level. This is a recipe for polarized stalemate in our divided country.
However, progressives seeking to resist these bills and place restrictions on campus speech should proceed with extreme caution. The bills are a symptom of rapidly changing attitudes toward universities: a recent Pew survey found that a majority of Republicans now say that colleges and universities have a negative effect on the country. In 2015, just 37 percent of Republicans rated the effect of universities negatively, but in 2017, this shot up to 58 percent. That means if progressives want to turn universities into ideological fortresses, conservatives will build battering rams. As always, our civic health will be the collateral damage.
Some bills are better than others. Colorado’s ban of free speech zones is a common sense measure – only 10 percent of universities still use them, and the Foundation for Individual Rights in Education has never lost a case challenging them as unconstitutional. Tennessee’s bill offers specific protections for faculty speech in the classroom, ensuring that honest attempts to teach that happen to offend are insulated from student overreaction. This helps cut off the reactance response by treating professors as partners, not problems.
People who care about the institutional health of our universities should be skeptical of such bills. But they need to accompany that skepticism with full-throated support of civil-society efforts to ensure our universities remain places where reason and open inquiry can seek the truth, aided by the give-and-take and mutual strengthening that comes from civil disagreement.
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