https://www.wsj.com/us-news/education/the-politics-of-campus-free-speech-draw-scrutiny-70a18ebe
The Politics of Campus Free Speech Draw Scrutiny
Congressional testimony exposes inconsistencies in universities’ application of First Amendment rights, legal scholars say
By
Douglas Belkin
The University of Pennsylvania is at the center of a national debate on campus free speech.
Appearing before a House committee examining antisemitism, University of Pennsylvania President Liz Magill acknowledged that calls for genocide to the Jewish people are hateful—but said they are protected by the school’s commitment to freedom of speech.
The next evening, in a video message, Magill backtracked and apologized for her testimony, saying the attacks were unacceptable.
“In today’s world, where we are seeing signs of hate proliferating across our campus and our world, in a way not seen in years, these policies need to be clarified and evaluated,” she said.
On Saturday, Magill announced she was resigning as Penn’s president, and Penn’s board chair also stepped down amid continued pressure from donors, lawmakers and other critics.
Magill’s flip-flop—and subsequent pledge to carve out broader exceptions to the First Amendment—is emblematic of the inconsistency with which Penn and other schools have selectively applied free-speech principles on campus, according to some legal scholars.
Too often, said Will Creeley, legal director at the Foundation for Individual Rights and Expression, schools will invoke the principles of free speech when it suits them, and condemn faculty and students who champion impolitic views when it doesn’t.
“It’s hard to see these schools present themselves as bound by these promises of free expression when they are very happy to ignore them or violate them in other instances,” said Creeley, whose organization advocates for free speech on campus.
The jurisprudence surrounding free speech and the First Amendment is complex and nuanced, having evolved over 230 years. Often the line between free speech on the one hand, and harassment and intimidation on the other, can be difficult to discern.
Still, Creeley and others pointed to examples in recent years in which private college and university presidents seem to have embraced free-speech arguments in some contexts, but shrink from them when asked to defend politically unpopular ideas or scholarship.
Several instances involved professors whose scholarship or commentary was viewed as critical of groups considered protected minorities.
A noteworthy recent example involved the Penn law professor Amy Wax, who has spoken frequently and publicly about her preference for Western culture and against race-based affirmative action. The school has acknowledged her right to free speech but still moved to have her dismissed. She remains at the school.
In recent years, petitions have targeted Penn professors who wrote papers about eugenics, condemned the mass gathering of Muslims during the Covid pandemic and criticized affirmative action and antiracism in medical schools. In 2021, a Penn anthropology professor was pressured to resign after he sarcastically gave a Nazi salute during a Zoom meeting.
In 2021, the Massachusetts Institute of Technology, whose president testified alongside Magill this week, canceled a lecture by the University of Chicago scientist Dorian Abbot after faculty and graduate students complained that his criticisms of affirmative action were unacceptable.
Other recent disruptions, cancellations or withdrawals of speaking events have occurred at Yale University, Stanford University and Vassar College.
“The track record of these schools is terrible, absolutely terrible,” said Nadine Strossen, professor of law emerita at New York Law School and author of “Free Speech: What Everyone Needs to Know.” She added: “The problem with all the deans and presidents who have not defended free speech is not that they are activists, it’s that they are spineless.”
Meanwhile, many students are engaging in self-censorship to avoid being punished for views considered problematic on campus, according to numerous surveys. A 2023 survey by the Buckley Institute at Yale found that 61% of students said they often felt intimidated in sharing beliefs different from their professors in class. In the same survey, 46% of undergraduate students said they thought it was appropriate to shout down or disrupt a speaker on their campus.
In response, groups including the Alumni Free Speech Alliance and the Heterodox Academy advocate for campus free speech and viewpoint diversity.
Private colleges generally aren’t bound by First Amendment protections. But most private schools have crafted codes of conduct that track constitutional guarantees for free speech—including the expression of views on campus that might be considered racist, antigay or sexist.
The University of Pennsylvania’s code of conduct guarantees students the right to free expression and thought. It also carves out an exception to free-speech protections for behavior defined as harassment, which generally involves speech that targets specific students in a repetitive way.
Political slogans that students could interpret as calls for violence, such as chanting “intifada,” wouldn’t constitute harassment, according to many scholars. They were more divided on whether a call for genocide against Jews would fall under that standard.
Demonstrators protested against antisemitism during a rally at the University of Pennsylvania on Thursday.“If you’re calling for the genocide of people in front of those people, yes, that is harmful and threatening and degrading,” said Laura Beth Nielsen, a professor of sociology and law at Northwestern University.
On many college campuses, Jewish students aren’t considered a protected minority. Israel is described by some student groups as a white supremacist colonial settler state.
So when protests began that advocated for Palestinians and condemned Israel by calling for Israel to be wiped off the map, schools were slow to condemn such a stance and categorized it as free speech. Pushback from the Jewish community, including from some alumni who have made significant donations to their schools, have presented their administrations’ approach as evidence that codes of conduct, especially as they relate to free speech, aren’t being applied in evenhanded ways.
The behavior indicates that schools are quick to restrict speech that could harm or offend some vulnerable groups, but won’t do the same for Jewish students, said Tom Ginsburg, a law professor and faculty director of the University of Chicago’s Forum for Free Inquiry and Expression.
“Schools, they seem to have different standards for different groups and different crises,” Ginsburg said.
Write to Douglas Belkin at Doug.Belkin@wsj.com and Laura Kusisto at Laura.Kusisto@wsj.com
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