Updated (6/20/2017, 4:29 p.m.) with comment from the president of Williams College.
The U.S. Senate Judiciary Committee on Tuesday convened a hearing to scrutinize the state of campus free speech, with a panel of students and experts tackling questions that have bubbled up on many campuses in recent months.
The seven witnesses who spoke to lawmakers were two students, two legal experts, a campus administrator, a former college president, and Richard Cohen, president of the Southern Poverty Law Center, an advocacy organization that among other things tracks hate groups in the United States.
Here are some highlights of the hearing.
The hearing grappled with a thorny question: At what point does speech become violent or threatening?
College leaders have a challenging job, said Fanta Aw, interim vice president of campus life at American University, in Washington, D.C. They have to maintain balance when protecting important values — free speech and student safety — that can conflict at times, she said.
If speech has the potential to incite violence or represents a direct threat to members of the campus community, Ms. Aw said, American officials will draw a line. “When students fear for their safety,” she said, “this affects their ability to study and participate fully in the life of the university.”
But at what point does speech rise to that level? asked Sen. Richard J. Durbin, Democrat of Illinois. He offered some hypothetical questions to illustrate the difficulty of figuring out where to draw the line: “Should I be able to stop a speaker because I’m offended? No. Because I’m intimidated? Yes. Should I be able to stop someone from speaking because he’s unpopular? No. Because I find him menacing? Yes.”
You want to encourage the exchange of ideas — let’s start with that premise — but you also have a responsibility for the safety of the students.
“Now put yourself in the position of the president of the university,” he said. “You want to encourage the exchange of ideas — let’s start with that premise — but you also have a responsibility for the safety of the students.”
Mr. Durbin also raised the issue of guns on campuses, noting that 10 states allow the concealed carrying of firearms at public colleges. “Does that make it a little more complicated for a college president as to whether or not that speaker is going to be allowed to come in and speak?” he asked.
But the existence of a concealed-carry law “does not empower college presidents to shut down campuses,” said Floyd Abrams, a prominent First Amendment lawyer. “There has to be more than a credible threat.”
Two college presidents faced criticism from lawmakers.
During his opening remarks, Sen. Charles E. Grassley, Republican of Iowa and the committee’s chairman, discussed concerns about administrators who “take the easy route of giving in to student pressure to restrict debate.”
Mr. Grassley specifically criticized Morton O. Schapiro, president of Northwestern University, and his support for “safe spaces.” Mr. Schapiro has said that students need spaces where they feel comfortable and supported in order to gain the confidence to learn and engage in uncomfortable discussions and debates.
The senator noted that, in a recent interview with The Wall Street Journal, Mr. Schapiro had been asked whether he would be comfortable with speakers like Milo Yiannopoulos and Charles Murray coming to Northwestern. Mr. Schapiro responded that he would permit them to speak “on a case-by-case basis.”
“No,” Mr. Grassley said. “The First Amendment does not permit arbitrary prior restraints on speech by university administrators on a case-by-base basis.”
Any great university would welcome numerous speakers whose positions made the president and many others on campus uncomfortable.
“Any great university would welcome numerous speakers whose positions made the president and many others on campus uncomfortable,” he added.
Toward the end of the hearing, Sen. John N. Kennedy, Republican of Louisiana, asked Zachary R. Wood, a student at Williams College, in Massachusetts, to elaborate on his experience of inviting controversial speakers to his campus. Mr. Wood tried to invite John Derbyshire, a conservative columnist, to Williams last year, but Adam F. Falk, the college’s president, canceled the event after a campus outcry.
It’s unacceptable that Mr. Falk prevented someone who was trying to civilly express an intellectual viewpoint from coming to Williams, Mr. Kennedy said. “If what you described is accurate, then he should resign,” the senator said.
“I don’t mean any disrespect to Dr. Falk,” he went on. But if he refuses to allow right-leaning speakers, “he’s not fit to be a college president.”
Mr. Falk said in a written statement on Tuesday that, although Mr. Wood had often criticized his administration, “he approaches our dialogues thoughtfully and respectfully. While at some moments we’ve disagreed on appropriate processes, we share a commitment to free expression of ideas on campus.”
Officials at Northwestern did not immediately respond to requests for comment.
One senator questioned whether federal law was pressuring colleges to censor speech.
Sen. Ted Cruz, Republican of Texas, asked Eugene Volokh, a professor of law at the University of California at Los Angeles, to talk about “the impact of federal law and federal statutory law — Title VII, Title IX — in pushing universities in the direction of censoring speech.”
Mr. Volokh said that, several years ago, the Department of Education’s Office for Civil Rights and the Department of Justice “took the view that actually federal law required colleges and universities to impose speech codes to prevent supposedly hostile or offensive environments.”
“Colleges had been trying to implement those kinds of speech codes — at least many had — for many years before,” he said. “But OCR was giving kind of cover to those who wanted to and putting pressure on those who might not.”
Colleges should try to provide an atmosphere free of violent threats to their students, Mr. Volokh said, as well as one where people don’t feel intimidated based on their views, such as political beliefs. “But universities have ample opportunity to do that by speaking out against the speech,” he said, and countering offensive ideas with their own expression.
Should colleges with few resources have to accommodate every contentious speaker?
College police departments don’t always have the staff, equipment, and training to assess and handle the disruption and violence that can accompany controversial speakers, said Sen. Dianne Feinstein, Democrat of California.
Ms. Feinstein objected to the idea that, no matter how offensive speakers’ views are and how likely they are to incite violence, colleges should have to accommodate them.
In an exchange with Mr. Volokh, she said, “You’re making the argument that a speaker that might foment a big problem should never be refused; they ought to be able to come — whatever the problem is, it ought to be handled.”
“I’m always hesitant to say ‘should never’ — there always are extraordinary circumstances,” Mr. Volokh responded.
“To me, the extraordinary circumstance is when people come in black uniforms and hit other people over the head,” Ms. Feinstein countered, referring to the black-bloc protesters who perpetrated violence that prevented Mr. Yiannopoulos from speaking at the University of California at Berkeley in February.
Frederick M. Lawrence, a visiting professor of law at Yale University and a former president of Brandeis University, said “the way to start with this is with a strong presumption in favor of the speech,” particularly if a student group has invited the speaker.
Still, he said, “the suggestion to universities — and it’s not just public universities, private universities that are resource-constrained as well — that we have the resources to throw at all of these problems is a vastly exaggerated notion of what universities can do.”
Sarah Brown writes about a range of higher-education topics, including sexual assault, race on campus, and Greek life. Follow her on Twitter @Brown_e_Points, or email her at sarah.brown@chronicle.com.
