Earlier this month, Sen. Tom Cotton introduced new legislation he and Sens. Mitch McConnell, Kevin Cramer, and Kelly Loeffler are advancing to protect freedom of expression on college campuses.
The bill, the Campus Free Speech Restoration Act, offers an ambitious approach to fighting campus censorship that builds upon — and in some ways improves upon — the president’s executive order on campus free speech and the Department of Education’s (hereinafter “ED” or “the Department”) pending regulations to implement the order. At the same time, there is room for improvement and reason for caution. There are aspects of the approach that warrant examination to ensure that its implementation would not produce unintended, and ultimately counterproductive, consequences.
While campus censorship manifests itself in many forms (originating from official policies; from ad hoc actions by campus officials; and from illiberal pressure from students, faculty, and the public), the bill wisely refrains from seeking to statutorily address cultural factors. Instead, it focuses exclusively on combating censorship by institutions.
The bill would regulate public institutions of higher education differently from private institutions. This distinction serves an appropriate purpose, given that the First Amendment applies to public institutions but not their private counterparts.
The legislation provides a robust framework for enforcing the free speech protections of the First Amendment at public institutions. At the outset, it would prevent public institutions from establishing misleadingly labeled “free speech zones,” instead permitting schools to adopt only those reasonable, viewpoint-neutral time, place, and manner restrictions that apply to the generally accessible outdoor areas of campus, unless those restrictions meet certain criteria. FIRE has proposed and helped pass legislation to tackle this problem, and we are pleased to see elements of our approach incorporated here.
Unfortunately, the bill as written does not accurately describe the criteria courts have used to evaluate the constitutionality of free speech zones on public campuses. Accordingly, the bill will need some small but important edits to bring it in line with legal precedent. Importantly, to enforce this provision, the bill provides an effective private cause of action — patterned after causes of action that FIRE has advocated for and helped secure in Kentucky, Missouri and Utah — that improves on the private cause of action provided under Section 1983 of the Civil Rights Act of 1964 by closing a loophole that allows schools to skirt judicial oversight when plaintiffs graduate.
Consistent with the president’s executive order on campus free speech, the next section of the bill forbids public institutions from receiving any federal funds that are provided under the Higher Education Act, which includes federal financial aid, if they maintain policies that either restrict expression protected by the First Amendment or maintain a time, place, and manner restriction that is inconsistent with the statute.
To ensure that students don’t suffer as a result of their institution’s violation of the legislation, the bill grants the current student body and admittees five years to complete any program at the institution without being impacted by any loss of the institution’s funding eligibility.
The bill also features an elaborate administrative enforcement process in which any member of the public may file a complaint with ED and thereby trigger an investigation. Once an investigation is initiated, the process would include rounds of agency review, appeal, and opportunities to fix the problem before the institution’s funding eligibility would be rescinded. Even then, institutions would have the opportunity to challenge ED’s decision to terminate funding eligibility in federal court, which would review the decision de novo.
The Campus Free Speech Restoration Act’s application to private institutions is less sweeping than its application to public institutions, but intriguing nonetheless. Currently, only one state — California — has legislation that requires non-religious private institutions to refrain from punishing expression that would be protected at public institutions. Religious private institutions are exempt from the bill, just as they are under Title IX.
Rather than apply the First Amendment to private institutions, some courts have concluded that when a private institution promises its students or prospective students free expression in policies or marketing materials, the failure to honor those commitments could be actionable as a breach of contract. To prevail under this legal theory, a student must prove that a promise did create a contract and that the promise was broken.
The bill would apply that framework across the country. It would do so by conditioning non-religious private universities’ receipt of federal funding on the public disclosure of “all policies pertinent to the protection and regulation of the expressive rights of students,” and by requiring private institutions to affirm
that publication of such policies . . . establishes a contractual obligation on the part of the institution to its students to maintain and enforce the disclosed policies, and only those policies, in matters pertaining to the protection and regulation of the expressive rights of students.
By requiring these disclosures, and public acknowledgement that the promises in those policies are contractually binding, students who wanted to enforce those promises in court would only need to further establish that the promises were broken.
To satisfy the public disclosure requirement, institutions must publish the policies prominently on their websites, and in their student handbooks, while also sending a copy to the Department of Education. Institutions that fail to make those disclosures, or that maintain or enforce a speech-restrictive policy that was not disclosed, would be in violation of the Act. This could lead to loss of eligibility for funding disbursed through the Higher Education Act, once again after a lengthy internal agency process which would then be subject to de novo review in court.
Interestingly, breaching one of the disclosed free expression policies would not constitute a violation of the Act. What that means for practical purposes is that ED would not be evaluating the sufficiency or contours of a private institution’s free expression promises. It would, instead, be ensuring that aggrieved students have everything on the record they would need to litigate a breach of contract claim in the court of their choosing.
To encourage robust protections of free expression at private institutions, the bill builds on an approach used by courts that have held that schools that promise free speech and academic freedom in their marketing materials, codes of conduct, and/or other policy documents may be subject to liability for breach of contract if they do not honor those commitments.
Given that the bill maintains private institutions’ right to decide whether to offer protections for free expression at all, the exemption for religiously operated private institutions is likely unnecessary. After all, it’s hard to articulate a compelling reason why religious institutions should be allowed to refuse to merely disclose their policies and agree they are contractually bound by them, when they could simply avoid making such promises.
So what does FIRE think of the approach taken in the Campus Free Speech Restoration Act?
With censorship commonplace on college campuses across the country, FIRE has long held the view that the federal agencies can play an important role in helping defend free expression in the collegiate setting. Accordingly, we have urged the Department of Education to use the Davis standard (which defines peer-on-peer harassment in the educational setting in a manner that protects free expression), praised the Department of Justice for filing statements of interest in campus free speech litigation, and submitted generally positive input when the Department of Education proposed a new regulation to implement the president’s executive order on campus free speech.
The federal government can be a great help in FIRE’s efforts to put an end to campus policies that unlawfully restrict student expression, but only if it does so carefully so as to avoid introducing unintended consequences.
For example, compared to courts, federal agencies are more susceptible to politicization, as they are led by political appointees. Accordingly, FIRE is wary of inviting the Department of Education to interpret and enforce the First Amendment writ large. The bill’s grant of de novo judicial review of ED’s actions helps address FIRE’s concern, but we are mindful that an administration unfaithful to First Amendment jurisprudence could still place a lot of pressure on schools.
Our experience in the Title IX context, where only one institution in the entire nation was willing to challenge the gross overreach of the April 4, 2011 “Dear Colleague” letter, does not inspire tremendous confidence that schools will be willing to fight back even in the face of obvious abuses by the executive branch—especially if federal pressure just happens to coincide with the political preferences of college administrators.
We also have some concern that even with de novo review, courts often find agency interpretations influential, amplifying the possibility of the injection of political considerations into the process.
One step Congress might take to further ameliorate FIRE’s concern that this could lead to administrative overreach would be to limit the amount of federal funding on the line. This could be done by exempting federal financial aid to students, or by changing the enforcement scheme from one focusing on eligibility for federal funds into one that is based on set penalties. Such penalties could be progressive and applied on a sliding scale depending on the enrollment or financial situation of the institution. However constructed, there is likely a healthy and sensible middle ground between a proposal that would impose the funding “death penalty” that has led to so many Title IX abuses and one that would offer only ineffective slaps on the wrist.
If the agency is to have an enforcement role, it should be limited to applying well-established First Amendment standards as set forth by courts and codified by the statute. This bill attempts to do so in the section on time, place, and manner restrictions, but as mentioned above, as it is currently written, the bill does not precisely track court precedents. We would recommend realigning that section with the judicial authority and then specifically adding sections that address common forms of speech codes where there is judicial precedent to codify.
For example, in addition to codifying standards for time, place, and manner restrictions, the bill could adopt the Supreme Court’s standard for peer-on-peer harassment, as already used by the Department of Education in the new Title IX regulations. The legislation could also empower the Department to evaluate whether an institution’s security fees and permit processes comply with the Supreme Court’s ruling in Forsyth v. Nationalist Movement, where the court held that it was unconstitutional to charge potential speakers different fees in anticipation of costs created by potentially hostile audience reactions.
One additional benefit of limiting the scope of ED’s jurisdiction to codified rules that have already been established by judicial authority is that it avoids creating a system where cutting-edge free speech questions are resolved administratively instead of in courts. Taking strong cases of first impression to court offers the possibility of creating new judicial precedent, which helps over the long run to establish the rights necessary to overcome qualified immunity.
With respect to private institutions, FIRE is pleased by the bill’s restraint. By requiring institutions to disclose their policies that either protect or regulate expression and to admit those policies create contractual obligations, the bill seeks to create a uniform and effective private cause of action for students at private institutions.
Congress should also consider taking a step to ensure that private institutions don’t simply adjust their policies to define free expression in a manner inconsistent with how courts have interpreted the First Amendment.
One way to do this would be to require private institutions to certify that they understand their promises of free expression will be held to the same standards public institutions are held to under the First Amendment, unless they submit a statement to the Department that specifically details how their commitments to those principles deviate from the obligations imposed on their public counterparts. As we said in our comment on ED’s proposed campus free speech regulations, “[p]utting the onus on those institutions that wish to be held to lesser standards to be clear, detailed, and public about their allowances for censorship may serve as a powerful disincentive to those who would water down those commitments to avoid liability.”
Even with FIRE’s concerns, we are grateful to the sponsors of the Campus Free Speech Restoration Act for proposing this thoughtful legislation. Legislators from across the aisle should welcome its addition to the debate about how to best fight campus censorship. With some targeted revisions, it could go a long way towards promoting the bedrock principle of free expression that must be an essential part of the fabric of our higher education system.