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Commentary: It's Both

Posted By NAEP, Tuesday, October 24, 2017

By: Neil Markee
Editor in Chief-Purchasing Link

One of the challenges of writing commentary for a publication with a deadline is deciding on a subject and another is staying current—to have something useful to say.   Given the rain-laden hurricane in Houston, followed by the powerful, meandering hurricane that all but destroyed many of the low-lying  Caribbean islands, , a follow-up hurricane that caused incredible damage in Puerto Rico, and then the earthquake in Mexico, and mass-murder in Las Vegas, it seems frivolous to focus on the constitutional, legal goings-on within our once seemingly safe ,secure community.  Most of us feel safe, have access to clean water, enough food, and a dry place to sleep.  None of those seemed like luxuries.   Recently, we have been reminded life—and the system that delivers the lifestyle most Americans enjoy—is fragile. Maybe safety is an illusion. 

At another level, there are serious problems on campus and outside the gate demanding attention, and free speech is one of those.  Until recently, it never seemed the open exchange of ideas that is at the core of higher education was at risk.   An article in the 9/29/17 issue of the Chronicle of Higher Education asked what will it be, “Free Speech, Campus Safety, or Both.” The correct response seems obvious.   Can the answer be anything other than both if the enterprise we are associated with is to be accurately referred to as higher education?  Many groups on campus make it clear there are issues worth protesting.  Along with society, we face a plateful of legitimate complaints and some institutions have to contend with existential financial problems as well.  Change is necessary and inevitable but I never thought I’d see a challenge to free speech from the University of California, Berkeley.   

Even the definition of safety on campus has changed. Thankfully, we are not discussing gunfire, rampaging trucks, bombs or nature’s fury.  In terms of the ongoing exchange of views, safety once meant you felt free to state your views and free to support, question or reject the views of others without fear of retribution.  Now, safety’s definition on campus seems to have been expanded to include being sheltered from exposure to views you find objectionable. That may not be deliverable.   A line from Broadway’s Guys and Dolls notes, “You don’t go to jail for what you’re thinking.”  True enough unless, as some argue, you share what others may consider as abhorrent, hateful thoughts with someone who feels assaulted by your words.  So far, the courts seem to agree that verbal assault is not physical assault and don’t justify using physical force or government-imposed sanctions in response.  But not everyone on campus has signed on and, in well-publicized instances,  some have acted to physically deny free speech to those with whom they disagree. But I think the pain some feel is real even if some of us who grew up with a robust daily exchange of views find it a bit difficult to understand why.  Dealing with the pain is a societal challenge.   

Along the way, we are learning freedom of speech, like many freedoms, can be very expensive in terms of lives, treasure and forbearance.  According to an article in the September 29, 2017 Chronicle of higher Education, a campus speech by the conservative writer Ben Shapiro attracted an audience of around 1,000.  Apparently, a few hundred, mostly peaceful, protestors were on hand and nine arrests were made.  Nothing much you say? “The university estimated that the entire exercise cost over $600,000.” Ideally, Mr. Shapiro, the conservative writer, should have been able to make his presentation with only the normal campus security on hand but, apparently, U.C. Berkley Chancellor Carol Christ felt that additional security was needed and was willing, or maybe felt constrained, to pay the price of free speech and probably correctly made a content-neutral decision to provide additional protection.  Not providing the security or barring the speaker would probably have been expensive as well at a public institution, if the aggrieved speaker or the inviting organization had filed suit after effectively being denied free speech.

 The rules governing private institutions are different according to an article titled, “Campus Speech and Anti-Klan Laws” in the October 2, 2017  issue of the Wall Street journal.

 Private Institutions have no First Amendment obligations to provide a forum for speech. But many riots purport to attack white ”supremacy” or privilege” and if private universities act with deliberate indifference to racially motivated attacks, they may be liable to students or speakers. Colleges are subject to antidiscrimination statutes such as Section 1981, an anti-KKK act that would cover student and speaker contract rights. If they accept federal funding – and all but a handful do – they are subject to Title VI of t he civil Rights act of 1964.”

“Institutions are not the only prospective defendants.  Campus rioters themselves may be liable under Section 1085(3), which covers private conspiracies and targets those, who like masked Antifa attackers go in disguise…”  The article applies most clearly to racially motivated physical attacks or efforts to exclude persons.”     

Ideally, in the procurement area, decisions are made based on need and product and service value, not on which candidate or proposal the company or its representative supported in the last election or contributions made to popular or unpopular causes on campus.  As such, keeping free speech issues out of purchasing decision-making should save money.  Selecting acceptable or preferable suppliers based on point of view would certainly drive up costs, deter open discussion with the business community and muffle open debate on campus, if potential donors or legislators were to take the same approach. Denying free speech could cost money.  Have you ever been pressured to favor one potential supplier over another or seen favoritism built into a proposal based on political considerations?  Denial of free speech rights may have been involved. 

Faculty members are complaining that threats they receive about opinions voiced in class or causes supported on campus are violations of free speech issues and call for protection provided by the institution. The basic issue is not vocabulary, hurtful words, (overall there seem to be few bounds there). It’s the message and control over what may be said or written and by whom.  You have to wonder if the same band seeking control of who is granted free speech from the guest podium may also seek to control free speech by faculty. And that raises the issue of who is running the asylum and when they will demand control over business, admissions, housing and other institutional decisions as well.  Free speech is like religious freedom. Either it’s available to everyone, everywhere, or it’s not free speech.

How about hiring, promotion or tenure decisions?   I recall a litigated situation here in New York some years ago where departmental faculty opposed the hiring of an otherwise well-qualified candidate  because his political views did not mesh with the existing majority within the department.  As I recall, some saw the differences of opinion rising to the ethical level.  They liked their cocoon and didn’t want to be forced to put up with someone, on a daily basis, with whom they profoundly disagreed. The judge disagreed.  I doubt the details of this case would have surfaced in the media had not the case been litigated. Does that ever happen on your campus? 

What will it be, Free Speech, or Campus Safety, or Both? We must deliver both to meet the definition of higher education.   But it’s not that easy.  We still have to concern ourselves with those who feel attacked when exposed to messages they find hurtful.  I don’t think safety zones are the answer, as there are too many topics to protect against and people can’t be educated in safety zones.  I don’t have a workable recommendation to share.  What’s happening on your campus?

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