Recent outbursts of anti-Semitism at American universities triggered a backlash against the monoculture many have adopted over the last decades. Presidents of the two universities with the worst FIRE (Foundation for Individual Rights and Expression) free speech rankings defended the indefensible by hypocritically invoking free speech. They were widely mocked, and alumni were outraged. Yet it took extreme pressure from mega-donors and plagiarism allegations to cause the universities to act.
Universities are remarkably resistant to external influence. Witness the statements finding loopholes in the Supreme Court’s Students for Fair Admissions vs. Harvard (2023) ruling to continue using race in admissions. Hence, it should come as no surprise that most university presidents do not regard the legality of their policies as one of their top concerns.
This is illustrated by a story shared by a FIRE attorney. FIRE complained that a specific university policy was unconstitutional, and the university attorney not only agreed, but stated he had already informed the university president. The president’s response was “I don’t care.”
We need to make them care.
As a start, we must extend First Amendment speech protections to all universities accepting federal funds. This funding must be contingent on annual signed attestations from the president and general counsel that the university has no policies or practices that violate the First Amendment. This is like the Dodd-Frank Act, which required executives to attest to their financial statements. Due to the imposition of personal liability, it is common practice in businesses for the leadership of major divisions down to low-level employees to sign similar attestations about corporate records.
This produces several benefits. First, universities would have to train staff on the First Amendment, while signing the attestation “educates” staff of their potential liability. The university will likely also be more responsive when it receives a written complaint from FIRE, or even a student.
In theory, nothing should change for public universities, as they are already subject to the First Amendment. However, the substantial resistance this proposal would meet says otherwise.
We must remove qualified immunity for college officials, both public and private, at least for First and possibly 14th Amendment violations. State employees (and private schools, once subject to the First Amendment) cannot claim that violating rights is part of their job responsibilities. Consider that New Mexico removed qualified immunity for state officials following the 2020 riots. When Democrat Gov. Michelle Grisham invoked a “public health emergency” in 2023 to ban legal guns from certain areas, several sheriffs and her own attorney general refused to enforce it. Perhaps the inability to hide behind “qualified immunity” for enforcing clearly unconstitutional infringements motivated them.
Finally, starve the beast, making funding contingent on a reasonable staff to student ratio. American Council of Trustees and Alumni research shows administration costs per student can be a substantial percent of tuition, and Stanford reportedly has more administrators than full-time students. Fewer administrators mean less ability to meddle in student or academic life. This proposal is analogous to the Affordable Care Act’s Medical Loss Ratio which requires insurance companies which do not spend a sufficient percent of premiums on health care to rebate the difference.
Individuals must also be empowered to fight back. Fighting back is hard: It is expensive, takes too long, and usually results only in an injunction to cease. In short, there is no real incentive for individuals to resist. However, we can think of these not as barriers, but as problems to be solved, addressing each in turn.
An existing law supplies a model to address these difficulties: The Telephone Consumer Protection Act (TCPA). The TCPA provides specified damages for an unlawful robocall. You do not have to show you suffered damage; Congress already set damages of $500 per call. In effect, this becomes a fine with decentralized enforcement. To encourage individuals to fight back, states or the federal government should set specified damages for each First Amendment violation, say $1,000. Daily damages could also be assessed for ongoing violations to encourage prompt resolution. Further, the TCPA allows individuals to bypass federal court altogether, suing in state court. Given the amounts involved, this can often be the local version of small claims court.
These courts vary by state, but typically do not require a lawyer to file a complaint and charge only a nominal fee. Hearings are held in weeks rather than months or years. Student or alumni free speech organizations could supply instructions for filing complaints, further removing barriers. These amounts will not bankrupt any university, and pale compared to the alumni donations reportedly being withheld.
But imagine that each time the university violates a student or professor’s speech rights, they sue and are awarded $1,000 each within weeks. The university treasurer and general counsel would storm the president’s office demanding this stop. Alternatively, without qualified immunity the violator could be sued personally. Either way, incentives are now pushing university officials in the correct direction.
Many recent egregious violations involve university officials tolerating disruptive behavior that violated the free movement and even safety of community members. At MIT, for example, protesters blocked major access points, preventing staff and students from going about their business while campus police stood feet away looking on. Likewise, protesters disrupted classrooms, and invaded offices and labs. Such disruptive activities are not protected by the First Amendment and violate other students’ First Amendment right of free association. Legislation could also clarify that these expanded means of redress also cover such disruptions. For example, protesters could be liable for specified damages to each person blocked, or each student in a disrupted classroom. The university could also be liable for allowing the disruption.
Intolerance and ignorance of First Amendment rights are deeply ingrained in university culture. No single measure will change that. A comprehensive approach focused on changing incentives for key university decision-makers is needed. Some of these suggestions could be impractical. But until we have a conversation about what kind of proposals can affect real change, all is sound and fury, signifying nothing.
Charles Davis is an alumnus of both MIT and The University of Alabama, and a board member of both the MIT Free Speech Alliance and the Alumni Free Speech Alliance. He previously served as President of both organizations.
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to Commentary@1819news.com.
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