In his State of the Union address Wednesday evening, President Barack Obama mentioned a topic of particular interest to FIRE. Discussing the need to make higher education more affordable and accessible to Americans, President Obama stated:
And, by the way, it’s time for colleges and universities to get serious about cutting their own costs, because they, too, have a responsibility to help solve this problem.
One crucial way that colleges can save money is to refrain from waging pointless appeals in free speech litigation when they are clearly on the wrong side of the law, as such litigation is an incredible waste of taxpayer funds. For example, Georgia Institute of Technology rang up over $200,000 worth of charges to taxpayers defending its violations of students’ First Amendment rights. Rather than recognize when it was beaten, Georgia Tech forged ahead with litigation and ended up paying this astronomical amount for the winning side’s attorneys’ fees and expenses. It goes without saying that this was not a wise expenditure of taxpayer money. Likewise, Temple University was ordered to pay the opposing side’s attorneys’ fees when it lost the fight over the constitutionality of its speech code. (In civil rights litigation, the law makes it possible for the plaintiffs to collect attorneys’ fees and expenses from defendants if a civil rights violation is established.) Thus, in addition to paying their own lawyers, which can be very expensive by itself since these cases tend to stretch out for years, universities fighting these losing battles end up having to foot the bill for the injured parties as well.
Colleges should therefore think twice or even three times before defending their speech codes in court when students challenge them as violations of their speech rights. For one example, despite the fact that two decades of case law have come down unanimously against speech codes, Tarrant County College in Texas continues to defend its policies against two students’ First Amendment challenge. For another example, despite receiving a resounding defeat in federal district court on the merits of its sexual harassment policy, the Los Angeles Community College District has stubbornly appealed the decision to the Ninth Circuit Court of Appeals, thus ensuring further taxpayer expenses to defend an unconstitutional policy. You can keep going down the line in our speech code cases: San Francisco State University, Texas Tech University, and others like them made the same mistake of expensively defending their policies.
Now more than ever, it’s time for universities to learn the lessons of the case law and save the taxpayer money that is being unwisely spent. Do they think taxpayers would actually approve of wasting their hard-earned dollars fighting well-established interpretations of the Bill of Rights in federal court? I don’t think so.
FIRE has also written before about the bloated administrative bureaucracy that characterizes too many campuses, and we lament the fact that far too few colleges and universities have cut down on needless and redundant administrative positions even in the face of a recession. Employing so many administrators—whose positions often overlap and leave them looking for a piece of turf to lord over on campus—often results in undesirable encroachments on students’ lives, rights, and liberties. After all, these administrators have to justify their positions and their salaries somehow–and overregulation of campus life, including students’ expressive rights, is many times the unfortunate consequence.
Harvey Silverglate has written many times about the burgeoning costs of employing so many administrators, but universities seem to have missed the memo. As Harvey has noted, the trend is also connected to the often harmful "corporatization" of the university. The time has come for universities to examine their expenditures with a critical eye and realize that, rather than slash things like student newspaper funding (as Los Angeles City College did) or a major portion of the curriculum (as Southwestern College in California did, prompting the campus protests that resulted in the suspension of three professors), they should pare down the unnecessary parts of their administrative bureaucracy.
I am hopeful that our nation’s colleges and universities will heed President Obama’s words to cut costs—and will do so in the right ways. President Obama and his administration should next turn their attention to calling for reform of speech policies and practices on our nation’s public campuses in order to defend First Amendment liberties and avoid expensive lawsuits. As we wrote in our open letter to President Obama last year upon his inauguration, a call from the nation’s highest office for universities to uphold students’ speech rights and to allow for the free exchange of ideas on campus would go a long, long way toward making this reform a reality. Here’s hoping that it happens.