Last week Tennessee enacted a law designed to promote free speech on the state’s public-university campuses. I support free expression on campus and understand why politicians might have been motivated to protect it with legislation. But this sort of legislation is a clumsy instrument with which to craft academic policy, and university leaders in other states would be wise to quickly address free-speech issues head on. Delay invites speculation that faculty and administrators are at best indifferent to free-speech rights and risks further intervention by impatient politicians. Recent success at the University of Missouri can be a national model of how to do this well.
At Missouri, free speech has been a hot topic lately. In November 2015, the president of the university system and the chancellor of the Columbia campus ("Mizzou") resigned on the same day, in the wake of student protests concerning the university’s racial climate. (The events were vastly more complicated and involved several other issues unrelated to race, but this summary will do for now.)
Some observers denounced the student protesters for dragging the university’s name through the mud, flinging broad accusations of racism, and making unreasonable demands. Others applauded the students for their idealism, their strength of conviction, and their perseverance in the face of intimidation — as well their tangible successes. In one particularly unfortunate moment, a professor shouted at a student and then pushed his camera in an effort to stop him from approaching and filming student protesters, and the confrontation became national news. She would ultimately be fired as a result.
Appointed interim chancellor in the aftermath of the resignations, Hank Foley knew he had free-speech problems. Journalists were questioning how the home of one of the world’s first (and best!) journalism schools could allow students to create a "no media" zone on the campus quad, as well as how a communications professor ended up in an argument that got so out of hand. Meanwhile, black students — among others — continued to face hateful speech, including criminal threats. Events on the quad had made at least one thing clear: Many on campus had no idea just what the rules were.
Responding to someone who posts on the now-defunct social media app Yik Yak, "I’m going to stand my ground tomorrow and shoot every black person I see" is not especially tricky as a policy matter. University of Missouri police found him and arrested him. But when white students utter racial slurs near black students, the question is more complicated. In addition to drawing the line between unlawful harassment and criminal threats (which the university may regulate) and garden-variety racist stupidity (which is mostly protected speech), the university would need to decide all sorts of other speech-related questions presented by the protests and likely to recur.
For example, are students allowed to camp on the quad? The former chancellor allowed it (despite existing university rules prohibiting it), but perhaps that was bad policy. Can members of the media be excluded from part of the quad by students seeking refuge from cameras and interviews, and is the answer to that affected by the chancellor’s implicit permission for the students to erect a tent village? What are the rules concerning electronic amplification of voices and music? What about chalk? And putting aside questions about legal rules, how can we build a campus at which everyone feels welcome, free inquiry is encouraged, and the best ideals of higher education may flourish as a result?
In January of 2016, Mr. Foley, who had seen his predecessor take heat for inadequate consultation with faculty on such matters as governance of the medical school and graduate-student tuition waivers, and I, as chair of the MU Faculty Council, appointed the Ad Hoc Joint Committee on Protests, Public Spaces, Free Speech, and the Press. The faculty contingent included two free-speech experts, one from the law school and one from journalism. Administration members included the vice chancellor for student affairs, the police chief, and the vice chancellor for inclusion, diversity, and equity. We also appointed two student members and invited someone from the general counsel’s office to attend as an adviser.
Despite the committee’s broad representation, there were immediate complaints. One journalism student noted the lack of any students from his school on the committee roster. Others wondered whether the six faculty appointees had too little — or perhaps too much — connection to recent protests. Rather than attempting to please everyone by adding more and more committee members, we reassured everyone that the committee’s report would be purely advisory.
It would not enact regulations but would instead make recommendations to the chancellor and the Faculty Council, who would then work together to craft a final version. We also promised to publish the committee’s suggestions and to hold public forums, as well as smaller meetings with student groups especially interested in the committee’s work. These procedural promises built trust that the substance would eventually prove acceptable to a wide cross-section of the university community.
Further trust accrued in March 2016 when the committee recommended a statement reaffirming the university’s "commitment to free expression" that was modeled on a similar statement released by the University of Chicago and adopted elsewhere. The Faculty Council and the chancellor endorsed it.
Throughout the spring, the committee met to discuss drafts. The student committee members, chosen after consultation with student-government leaders, informed the committee about which proposed rules might incite student discontent. The adviser from the general counsel’s office provided background on how a Missouri statute could complicate the First Amendment analysis concerning regulations of university property.
In late May 2016, the committee chair transmitted the committee’s detailed recommendations to the chancellor and me. I shared the report with the Faculty Council, and the chancellor emailed all faculty, staff, and students a link to the committee web page where the draft rules had been posted. It didn’t take long for suggested improvements to appear in my inbox. This past fall, we held public meetings, and the committee prepared updated drafts incorporating changes suggested in written comments and at the forums.
Eventually, the Faculty Council approved a set of policies, and the chancellor directed staff to distill them into new provisions of the "Business Policy and Procedure Manual." A few days before leaving for his new job, Interim Chancellor Foley announced his formal approval of the policies, effective June 1, 2017.
The rules represent the shared wisdom of faculty and administration, as well as the staff who will enforce them and the students they will regulate. With a combination of expertise, patience, and goodwill, we have shown how shared governance is supposed to work — and how free speech can be protected.
Ben Trachtenberg is an associate professor of law and chair of the Faculty Council at the University of Missouri.