One of Shakespeare’s most widely known and most misunderstood lines comes in the form of a famous gibe from Act IV of Henry VI, Part II: “The first thing we do, let’s kill all the lawyers.” Spoken by Dick the Butcher, the aptly named flunky of English revolutionary leader Jack Cade, the words are, on one level, an ironic jab at the then-booming legal profession, but they also carry a deeper axiom about political order: Shakespeare, and by extension his rebels, understood that to seize power, the law and its stewards first must be overthrown. Destroy the established law, and the usurpers are free to make their own and to mete out justice as they see fit.
To understand this truth, one need only look to the nation’s colleges and universities, those little despotic kingdoms dotting the land of the free. Once-venerable institutions, committed to unwritten laws governing the pursuit of truth (intellectual exploration, academic freedom, and the other eminent tenets that compose a truly higher education) are now thoroughly overrun by an upstart class of petty, would-be authoritarians: grubby, administrative bureaucrats whose primary goal is the continual justification of their six-figure salaries. As such, their loyalties lie not with outdated notions of “free inquiry” or “due process,” but rather with whatever fresh sentiment of epistemological protectionism is prevailing among the loudest-shouting members of campus — under which auspices administrators can erect yet another regulatory edifice and thus fulfill their raison d’etre.
That the law of the land and purpose of the university are unsettled in the process is of no consequence; indeed, some may think it a bonus.
Enter Nicki Neily and the lawyers at Speech First, a budding student-rights organization whose mission is to remind colleges and universities of what theirs ought to be. In May, it sued the public University of Michigan over its unconstitutional speech restrictions and Orwellian “Bias Response Team,” an elaborate investigatory and disciplinary apparatus designed to suppress and punish speech other students deem “demeaning,” “bothersome,” or “hurtful.”
Now, Speech First is at it again, with a new lawsuit brought this month against the University of Texas.
Like its previous lawsuit, Speech First v. Fenves et. al argues that the Texas flagship maintains official policies that chill free speech and open discussion and run afoul of First Amendment protections, which extend to public universities like UT. Specifically, the suit takes aim at four UT policies that overlap to restrict and punish significant amounts of protected speech and expression, made worse because UT “fails to provide sufficiently narrow definitions” of highly subjective terms.
For instance, UT’s “Acceptable Use Policy” for technology resources, such as university email and internet access, bars any “uncivil,” “rude,” or “harassing” communication. It gives no definitions for what constitutes such behavior but does explain that punishments for infractions range from verbal warnings to disciplinary probation, suspension, and criminal prosecution. When definitions actually are given under UT policy, they are vague and unconstitutionally overbroad — for example, the Institutional Rules’ ban on “verbal harassment,” which extends to “offensive” speech, including “insults,” “epithets,” and “ridicule.” Or the Residence Hall Manual, which governs the thousands of students living in university housing, that expands prohibited “harassment” to include “racism, sexism, heterosexism, cissexism, ageism, ableism, and any other force that seeks to suppress another individual or group of individuals.” (A straight reading of this policy leads one to presume that, among other things, hurricanes, communism, linebackers, and creeping dread are all outlawed within UT housing.)
As the Speech First complaint points out, “All of these prohibitions are backed by the threat of investigation and formal or informal discipline, yet they encompass protected expression and provide no clear or objective guidance to students about how to comply.”
As if that weren’t sufficient, UT, like the University of Michigan, supplements its nanny-state regulatory regime with a Campus Climate Response Team, a team of administrators who investigate and punish “campus climate incidents” and “bias incidents” submitted by students, usually anonymously. Among the bias-incident examples listed is speech perceived as “offensive,” “insulting,” or “insensitive,” whether said in the classroom, on social media, or at a party. Since September 2017, the CCRT has investigated more than 100 reports of alleged “expressions of bias,” the punishment for which ranges from mandated diversity training to formal discipline.
Bias-response systems like those at Michigan, Texas, and many other public and private institutions are anathema to the First Amendment and to the fundamental project of academic learning. Students, faculty, and staff can be subject to investigatory tribunals spawned by anonymous complaints over virtually anything, including participating in scholarly enterprise. Speech First’s two suits are among the first direct legal challenges to bias-reporting systems, but there is precedent that supports its case. As the Foundation for Individual Rights in Education (which, along with Alliance Defending Freedom, filed an amicus brief in support of Speech First’s suit against UM) has explained, the First Amendment not only restricts the government (and thus public universities) from “expressly penalizing or prohibiting speech. It also prohibits ‘adverse government action against an individual because of First Amendment freedoms.’”
It’s hard to see how investigating, much less formally punishing, a student for something said at a party doesn’t constitute “adverse government action,” but doubtless the university will argue it somehow doesn’t. Administrative bias-response systems must be justified because administrators themselves must be justified. After all, with fewer systems and regulations, what need for all of the bureaucrats?
It’s in the best interest of institutions and administrators alike to leave their authoritarian pretensions and social-justice nostrums and return to the university’s founding telos: truth. Indeed, according to FIRE, it is not just universities that face legal exposure over bias-response teams and speech codes; because First Amendment principles are so well-established under the law, and as speech restrictions are consistently defeated in court, administrators themselves risk being held personally liable for their role in violating constitutional rights. Maybe after one campus mandarin faces consequences for their fecklessness, the rest will reform, if only out of self-preservation.
Until such time, I’m with the lawyers.
