What’s the Real Threat to Campus Free Speech?

It isn’t "woke" faculty or students—it’s the administrative state's expansion of Title IX

U.S. Department of Education, Washington D.C. Photo Credit: Lucas Images, Shutterstock.

There has been a heated discussion—or rather, several rounds of poisonous name calling—over the issue of freedom of speech on college campuses in recent months. This was triggered in the first instance by the reactions of some on the left to the October 7 attack by Hamas, and then by the actions of university administrators in response. This all came to a head with three university presidents being called before New York Republican Rep. Elise Stefanik’s Committee on Education and the Workforce, and the fallout from the seemingly equivocal answers given by Penn’s Liz Magill, Harvard’s Claudine Gay, and MIT’s Sally Kornbluth.

I don’t want to add to the endless dissection of that incident, which morphed into a general attack on universities on the one hand, as well as a rather hypocritical defense of free speech on campus by many academics. The kinds of constraints that universities should put on speech is an important issue, but it is different from the broader question of free speech in a liberal society when it is the state itself and not a university administration that is making up the rules.

I want to make it clear that I do not regard the kind of "woke liberalism" described below to be the most serious threat to liberal societies, or to the United States, today. That threat clearly comes from the MAGA right, which has been willing to overturn a free and fair election and threatens to do that and worse again in the future. In terms of state control of speech, it is my belief that we Americans today live in one of the freest societies ever experienced in human history. 

This assertion gets a lot of conservatives very mad. They say, “Look at how woke progressivism dominates all of our institutions, from universities, the media, and corporations to the military and public schools. We are living in a tyranny where no one can say what they really think, overseen by an out-of-control administrative state.” At a seminar on Classical Liberalism where I presented my views, a Stanford colleague ticked off any number of opinions he said he wasn’t allowed to articulate—not just on issues of race, gender, or sexual orientation, but political views on Jan. 6 or sympathy for Donald Trump.

All of this shows considerable confusion about what freedom of speech is, both in law and in practice. Almost all of the constraints that these conservatives complain about were imposed not by the government, but by private organizations and individuals. The First Amendment only prohibits limits on speech by the state, and actually protects the right of private groups to control the speech of their members. The New York Times or Wall Street Journal have a right to not publish views they disagree with, while Penn, Harvard, and MIT are free to make up guidance as to what can and can't be said on their campuses. What is not permitted is for the government to set down speech rules for universities. But as we will see below, this boundary has been challenged over the past decade.

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For Justice Sam Alito, Freedom Is Censorship and Censorship Is Freedom

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It is true that if my Stanford colleague were to defend Donald Trump in one of his classes, he would get a huge amount of pushback from students and social ostracism by his peers. But that makes the Stanford campus a restrictive place, not the United States as a whole. All this professor had to do was to drive out 50 miles to the John Deere dealership in Gilroy, or be interviewed on Fox News, and his same views would meet with a lot of approval. What conservatives denounce as censorship is in many cases just the result of changing social norms and pressure by private citizens that have moved in directions they don’t like—e.g., towards support for abortion rights or gay marriage.

What I want to focus on here instead is what I would regard as the real theoretical issue for liberal societies, that is, illegitimate government efforts to control speech. I argued in Liberalism and Its Discontents that liberal states have a right to control abusive and discriminatory behavior, but do not have a right to control thought except under very narrow circumstances. Freedom of speech is basically freedom of thought, and as one of the foundations of a liberal society it needs to be protected. 

The state’s right to control discriminatory behavior has been well established in law and social practice since the 1960s. The 1964 Civil Rights Act and Supreme Court decisions like the Heart of Atlanta Motel v. the United States established the principle that the owner of a restaurant or motel offering public accommodation cannot refuse service to anyone on the basis of their race or ethnicity. (This principle was somewhat weakened by the recent Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling that the baker in question could refuse to serve a gay couple on religious grounds, where the right to equal protection was held up against First Amendment rights.) But while the state could use its power to sanction someone who exhibited discriminatory behavior, it could not reach into that individual’s private thoughts. 

This principle has been challenged by the Office for Civil Rights (OCR) within the Department of Education, which over the past two decades has overseen a vast expansion of the reach of Title IX of the Education Amendments Act of 1972. As Shep Melnick explains, the original statute had only a couple of sentences prohibiting educational institutions from discriminating on the basis of gender, based on the model of Title VII of the Civil Rights Act. For the first couple of decades of Title IX, it was applied primarily to varsity sports where it was held to require equal funding of men’s and women’s athletics. Over time, the statute was applied to sexual assault and sexual harassment, which was eventually seen by the courts as covered by the Title’s prohibition of discrimination based on gender. Rape was always of course illegal, but as women entered workplaces in large numbers, sexual harassment increasingly became a form of behavior that the state tried to regulate. 

The courts wrestled with definitions of sexual harassment; it was generally agreed to include unwanted touching or kissing, but came to encompass creation of a “hostile environment.” Again, regulating hostile environments was fine for the most part; putting up a pornographic picture in a lunchroom or class might reasonably be prohibited. In the late 1990s the Supreme Court issued two decisions, Gebser v. Lago Vista School District and Davis v. Monroe County Board of Education, that defined sexual harassment fairly narrowly but affirmed the state’s right to sanction such behavior in educational facilities.

The Office for Civil Rights was not satisfied, however, with this individualistic tort-based approach to the problem. It argued that the rules defined by SCOTUS were hard to enforce, and that what needed to change was not just individual behavior but the attitudes and culture that led to offenses. The 2010s saw a huge amount of attention paid to sexual assault and harassment, underlined by the Harvey Weinstein scandal and the growth of the #MeToo movement. OCR wanted to eliminate what it saw as the “rape culture” that it believed was an epidemic on American campuses. This then led to the issuance of literally hundreds of pages of detailed instructions in the form of “Dear Colleague” letters by the Obama administration on how colleges and universities were to deal with this issue. A huge amount of emphasis was placed on the details of the training that Title IX offices are supposed to carry out, and on verification that the subjects of that training have absorbed its messages, leading to the creation of a massive institutional structure in virtually every American university to carry out OCR directives.

This was the point at which the administrative state began to threaten the liberal values of freedom of speech and due process. In OCR’s view, creation of a hostile environment included not just acts and comments aimed at individuals, but rather broad statements that could be deemed offensive to a marginalized group. OCR, moreover, promoted an inquisitorial model for prosecuting charges of assault or harassment, in which the accused were not permitted to question witnesses or appeal decisions. Classical liberals woke up to the fact that their principles were under attack.

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The Triple Justification for Liberalism

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The expansion of Title IX constitutes what I regard as an illegitimate restriction of freedom of speech, not by a private organization but by an arm of the U.S. government. This is not the worst injustice being perpetrated by a modern government, but in terms of principle it has contributed to an atmosphere on campuses restricting free speech. Our society would be better off if the government limited itself to policing behavior and didn’t seek to change an entire culture with regard to gender relations.

But can the distinction between the regulation of behavior (permitted) and the regulation of thought (prohibited) be generalized? Should liberal states then forswear efforts to regulate thought and culture across the board? 

This is a complicated question whose conclusions depend more on how that regulation is implemented than the principled issue of whether regulation itself is justified. Liberal states have in the past played important roles in shaping culture, and in particular a culture of liberalism. For example, after the formation of the Federal Republic of Germany in 1949, successive German governments went to great lengths to teach German young people about the horrors of Nazism and the Holocaust. Similarly, after the Civil Rights era, many American public schools began to teach children about the country’s history of slavery and segregation. These narratives were critical in building support for liberal values in the post-Civil Rights era. Countries like Japan and Turkey that have also done terrible things in their pasts and did not confront them in their educational systems have been blamed for leaving the door open to extremism in the present. 

The general principle that liberal states have not just the right but the duty to protect themselves by building a liberal culture may be right in the abstract, but the wisdom of moving in this direction depends a great deal on exactly how that cultural instruction is carried out. I have heard many Germans say that the way they are taught about their National Socialist past has been so overbearing that it has provoked a negative reaction among younger Germans, in some cases leading to their adopting the opposite of the desired values. In the American case, it is one thing to teach children about the history of slavery and Jim Crow, and another to uncritically transmit the Hannah Nikole Jones narrative about the centrality of racism to America’s identity from 1619 to the present. 

Advocates of today’s Title IX training would argue that they are simply reinforcing liberal values, but they should ask themselves whether such support requires hundreds of pages of detailed instructions on gender relations. This intrusiveness moreover risks creating a backlash. (Indeed, the Title IX training I was recently required to take had a section on how to deal with men who resented having to sit through the very course they were taking.) It should be possible to protect transgender people from discrimination without requiring that everyone believe the current received wisdom about gender fluidity. There was good reason why this was never one of the core values of classical liberalism.

An earlier version of this essay first appeared in American Purpose.

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