On July 25, FIRE President Greg Lukianoff testified before the United States Commission on Civil Rights on the topic of “Enforcement of Sexual Harassment Policy at Educational Institutions by the U.S. Department of Education’s Office for Civil Rights (OCR) and the Civil Rights Division of the Department of Justice (DOJ).” A few days later, Professor Eugene Volokh of UCLA Law School and the noted legal blog “The Volokh Conspiracy” published a segment of an unedited transcript from the hearing in which Commissioner Michael Yaki asked Greg some eyebrow-raising questions about whether college students’ brains are sufficiently developed to handle freedom of speech.
Since Professor Volokh posted the question, various news outlets including The Washington Examiner, The Daily Caller, and National Review, as well as legal bloggers like Professor Jonathan Turley and attorneys Hans Bader and Scott Greenfield, have reported on Commissioner Yaki’s dismaying suggestion.
What has not yet been reported was Greg’s answer to Commissioner Yaki’s question.
While FIRE was planning to hold off on commenting until the finalized transcript of the hearing was released, it is also important to us not to allow the debate over this question to take place without a meaningful understanding of how Greg responded in his testimony.
The following is Greg’s answer to Commissioner Yaki’s question as posted on The Volokh Conspiracy and picks up immediately where Professor Volokh’s quoting left off. Since this comes from an unedited and non-final transcript, Greg and I have corrected some of what we believe to be errors of transcription and added punctuation to make for easier reading.
MR. LUKIANOFF: I've rarely heard that argument made so directly. Essentially, just to summarize it, the way I've heard it made in the past is essentially that what we're really saying is that 18- to 22-year-olds are children. And they must be therefore treated the same way as K through 12 are. They can't handle the real world. They can't handle the duties of citizenship. It's an argument that I've definitely heard.
And if you're saying that basically we should—that maybe below-graduate-level study should be ruled the same way high school students should be—I would disagree with you.
But that's definitely an argument that people should make that straight out, but you run into a couple moral and philosophical problems with that.
One of them is the moral and philosophical underpinnings of the 26th Amendment. Essentially, we have decided in this country that 18-year-olds… that is considered the age for majority.
We also send our 18-year-olds to war. Unless you're actually also willing to make the argument that nobody below the age of, I don't know, 22 should go to war, and we repealed the 26th Amendment, we've got a serious problem.
MR. LUKIANOFF: I just want to make one last point, and do not forget that some of the greatest contributions of colleges and universities come out of their graduate and Ph.D. programs. And so what I've watched is people try to argue that because of the presence of some 15- to 16-year-old super-geniuses at some of these campuses, that we should be therefore limiting speech on college campuses, forgetting that [that] would also limit the speech of 45-year-old Ph.D.'s.
Greg and FIRE have written on this topic extensively before, including in this 2005 blog post about the disturbing ramifications of the opinion in Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005). Greg wrote:
The reasons that we consider college-age students to be distinct from high school students run deep and include not only the differing functions of higher education and high schools in our society, but our moral duties to the young citizens who fight our wars and play a vital role in our democracy. Unless we are willing to rethink 40 years of constitutional law, repeal the 26th amendment, and tell the 40% of our military that is 24 or below that it has to come home, the infantilization of college students must stop.
For our most comprehensive discussion of why we consider there to be a “bright line” between high school and college read former FIRE Jackson Fellow Kelly Sarabyn’s brilliant article, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students’ First Amendment Rights.