A President might not find it simple or straightforward to use direct executive orders to cut off funds to universities that tolerate disruption of speech or exclude speakers based on the content of their speech. But the power that the Department of Education and allied agencies have gathered to themselves over university life has steadily mounted, often against little resistance from the universities themselves, as in the Title IX instance. That gives an administration plenty of handles to make its will known, a process previewed in October, as to Trump, in a Chronicle of Higher Education piece. It quotes Alexander Holt, an education-policy analyst at New America, saying: “I could see a Trump administration going crazy on these ‘Dear Colleague’ letters.”
Two years ago I cited several examples of rule by Dear Colleague letter, as I called it, in this area. (More here.) And I noted one big problem with invoking judicial oversight to check the federal government’s power:
It may be difficult to persuade a college to serve as a test case, given the annihilating possibility of a federal funds cutoff as the penalty of its presumption.
More: cross-posted, slightly expanded, at Cato at Liberty. And FIRE (Foundation for Individual Rights in Education) has now weighed in on last night’s events at Berkeley surrounding an invited speech by Milo Yiannopoulos. On the federal funding issue, FIRE states its view as follows:
It is true that, under current law, public universities that enforce blatantly unconstitutional speech codes and private universities that violate their own promises of free speech do not face the same potential loss of federal funding for censoring campus speech that they do for violating other federal civil rights laws and regulations. However, FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
Those who engage in violent and/or destructive protests are ultimately responsible for their unlawful behavior and may be subject to arrest and prosecution by law enforcement. To punish an educational institution for the criminal behavior of those not under its control and in contravention of its policies, whether through the loss of federal funds or through any other means, would be deeply inappropriate and most likely unlawful.
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Much easier solution. The universities’ failure to allow free speech on campus, at least with respect to public universities, is a criminal civil rights violation (because it is under color of law). Frog march a university president.
This is actually a good idea. Obama sent his AG on wild-goose “civil rights violation” investigation (like the two years they spent trying to pin a civil rights violation on George Zimmerman). An action here may actually have a chance of succeeding.
And, while I believe people should be able to decide which bathroom best suits them, didn’t Obama threaten to withhold federal funding from North Carolina over their “bathroom bill?” (Here’s a story from the NY Times that seems to indicate that: https://www.nytimes.com/2016/04/02/us/politics/north-carolina-anti-discrimination-law-obama-federal-funds.html )
I think there are two issues here. The first is the extent to which UC Berkeley is responsible for what happened. As the FIRE statement points out, the primary cause for the suppression of the speech was the protests, not the actions of the University. It’s not as if Berkeley didn’t take measures to facilitate the speech: it provided a venue, large numbers of police, barricades, etc… One can certainly question whether those measures were adequate, but under your standard, how far does a university have to go to ensure the speech goes on before an administrator is handcuffed? Is there a certain number of police officers they have to provide that would be constitutionally sufficient?
Second, there are specific concerns as to Yiannopoulos’s speech that make this a little less of a black and white free speech issue (which, to be absolutely clear, is not in any way grounds for smashing up a Starbucks). Yiannopoulos has a proven track record of inciting large-scale mobs of harassment against individuals. His followers target people he has singled out with everything from a barrage of racist imagery to swatting (having a police SWAT team sent to their home under false pretenses), and he has egged on such behavior by fabricating offensive tweets that purport to be sent by his targets. This is why he has been unable to meet the minimum standard of human decency required to maintain a Twitter account.
Last month, he spoke at UW-Milwaukee and named and put a picture of a transgender student on the screen. His commentary on this student may have started with a political issue, but it quickly veered into commenting on the student’s appearance and sex appeal. The student withdrew from the University as a result. There is no reason the political content there, which surely constitutes free speech whether ones agrees with it, couldn’t have been discussed without targeting this specific student by name and photograph. At University of Washington, a grad student who helped organize a series of peaceful events in opposition of Yiannopoulos was subject to harassment, including violent sexual threats and efforts to track his movements and personal information of his family. And, of course, one of his followers shot someone outside his speech at the University of Washington; the incident is still under investigation. And at Berkeley, the University’s own Office of Student Affairs wrote before the speech that “Milo’s event may be used to target individuals, either in the audience or by using their personal information in a way that causes them to become human targets to serve a political agenda.”
To me, there’s a good argument that such speech goes beyond the free exchange of unpopular views and constitutes incitement.
I should have been more clear that I was speaking generally. UC-Berkeley appears to have done all it could, and criminal liability would be tyrannical here. But to the extent that administrators do things like force conservatives to pay for security or to the extent that administrators do not enforce rules even-handedly so as to harm people for their speech and views–criminal liability can attach.
“Yiannopoulos has a proven track record of inciting large-scale mobs”
True. Also true those large-scale mobs were – and remain – so easily, pathetically offendable by anyone whose point of view they haven’t the wit to rebut, or who they just hate because it’s fashionable in their set.
“FIRE has so far seen no evidence that Berkeley as an institution made any effort to silence Yiannopoulos.
No Berkeley didn’t make any effort, because they knew that the thugs that they support would do the job for them.
I tried to take my seven year old great niece and two of her friends to a women’s college basketball game a few weeks ago. When we got to the field house I was stopped by a campus police officer. I was told to turn around and go home. There was a “protest” going on because somebody thought that ESPN was televising the game (they were not) and they would get some air time. The officer told me that he stopped me in my best interest because I looked like somebody who wouldn’t put up with being harassed by the protesters and he didn’t want to have to arrest me. The main thing was that the college was still on break and the majority of the protesters were NOT students, but, the college still allowed them on their property and did nothing to break up the protest. Being out $120 for the tickets was bad enough, but, trying to explain to the girls why they couldn’t see the game was worse.
This issue could pivot on the degree of effort put forth by the school to curtail the misbehavior . Some reports say the school administration did little to nothing to control the situation even as it got out of hand. The school administrators have a duty to maintain law and order and failure to do so may or may not be a crime by it should at the very least put them in the crosshairs for severe sanctions, and what talks louder in higher education than the almighty dollar.
U.C. Berkeley was put on notice by the protests at other venues for this same speaker, yet they failed to take sufficient action to prevent the protest from disrupting his presentation. In addition, it was Berkeley that cancelled the presentation, not the speaker.
You cannot claim to support free speech and then stand idly by while speech is suppressed, particularly when you have the legal responsibility to police the venue as did U.C. Berkeley. This is no different than a local police agency failing to protect the civil rights of some of its inhabitants by not making the police available in areas where the civil rights violations occur.
I’d certainly like to know how many of these thugs and vandals were arrested and charged for their crimes.
They reportedly had university police, city police, county sheriffs, and brought in additional UC police from most of the other UC campuses. They also had barricades and took other measures to secure the event. I agree there’s an argument about whether their actions were reasonably sufficient (they were, obviously, not successful), but it’s not as if they threw up their hands and did nothing either.
Yes, but the police did very little; according to The Daily Cal only 1 protestor was arrested:
http://www.dailycal.org/2017/02/02/ucpd-arrests-1-suspect-connection-protests/
Given the level of violence, that just sounds preposterous to me.
They pretty much did throw up their hands and did nothing. NO ONE was arrested (although there are contradictory reports that one person was arrested afterwards) And the police did nothing to stop the rioters.
http://www.berkeleyside.com/2017/02/02/berkeley-police-injuries-extensive-property-damage-no-arrests-no-force-used/
As someone else mentioned, withholding federal funds from Universities that violate the 1st Amendment seems more than fair to me.
Following a feisty early-morning tweet from President Trump, the University of California, Berkeley said Thursday it “deeply” regrets canceling.
Some States have Ku Klux Klan acts prohibiting masks at demonstrations and perhaps elsewhere. Given the recent rise in masked thuggery, it is time for Congress under its 14th Amendment civil rights authority to apply the principle nationwide. Some ideas (with exceptions for benign contexts like Halloween):
A mask creates “probable cause” for police to stop a subject; identify, photograph and print him; search him for weapons; inspect hands for injuries suggestive of crime. If in fact there are no unsolved crimes possibly associated with this stop, temporary records can be discarded after a month or so.
A mask establishes “premeditation” for crimes.
Defensive gun use is justified against a masked assailant.
Fezzik: “Why do you wear a mask? Were you burned by acid or something?”
Westley: “Oh no. It’s just they’re terribly comfortable. I think everyone will be wearing them in the future.”
Also, never go in against a Sicilian when death is on the line.
In debates about the wisdom of a Federal Ku-Klux-Klan act, masked SJW stormtroopers could be called “K-K-Kommies” or “Ku Klux Kommies.”
“Your face is your badge of humanity.”
Heck, why stop a Berkley? De-fund them all (ok, not defund, but removal of a large source of funding).
Fixing the student loan problem and the ridiculous state of higher education is easy – simply eliminate the federal student loan problem. Also, revise the bankruptcy code to make future private student loans subject to discharge.
Results: Taxpayers for the win. Future students saved from a life of debt servitude paying for a useless degree for the win. Social Justice Warriors (SJW’s) masquerading as professors on the public payroll for the loss (go get Mr. Soros or other private money to pay for your advocacy) . One less fiat currency inflation mechanism (since money is loaned into existence) means the lower and middle classes not being screwed by inflation for the win. Bankers & other rich people who do win from inflation for the loss.
Those two steps would eviscerate the hundreds of billions of slush funds flowing around campuses, returning them, out of necessity, to being selective and providing an actual education to their students, who paying out of pocket, would demand results at a reasonable price. Without the oodles of cash coming in, universities will be forced to find efficiency that lowers the cost, bringing higher education costs back in line with historical norms (from 20-30 years ago).
The current student loan model makes many consumers of this product not cost conscious. Who cares what it costs when it’s so abstract – student loan money never passes a students hands, going straight to the institution. Forcing students to pay out of pocket will necessarily force a choice of cost effective higher education.
If the snowflake SJW departments can’t find enough suckers, er, students to fund out of pocket, well then, tough cookies. Useful programs like Physics, Math, Medicine and Engineering for the win.
[…] that punished students for speech otherwise protected by First Amendment [The American Interest, earlier] A new cadre of federally mandated administrators, modeled on Title IX coordinators and backed by […]