Sessions’ Justice Dept. Will Weigh In on Free-Speech Cases. What Should Campuses Expect?

September 26, 2017

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Attorney General Jeff Sessions, speaking on Tuesday at Georgetown U.: "Freedom of thought and speech on the American campus are under attack."

More than a hundred people gathered on the steps in front of the Georgetown Law Center here on Tuesday in anticipation of an appearance by Attorney General Jeff Sessions. Inside, Mr. Sessions would be discussing one of today’s most pressing topics on college campuses: free speech. But outside, a group that included students and members of the law school faculty pointed to the irony that they had been denied access to the hall where the attorney general would speak — placing him in precisely the kind of safe space that he was there to criticize.

The protesters held signs that read "Defend Free Speech: Denounce Sessions"; "Will you silence dissent but applaud hate speech?"; and "I served to protect free speech and you should too."

Inside the auditorium of Bernard P. McDonough Hall, Mr. Sessions gave a wide-ranging address in which he criticized college campuses for becoming "an echo chamber of political correctness and homogenous thought, a shelter for fragile egos."

"Freedom of thought and speech on the American campus are under attack," he said. As he spoke, some students wearing all black sat with black tape across their mouths in protest.

Mr. Sessions said the Justice Department "will enforce federal law, defend free speech, and protect students’ free expression from whatever end of the political spectrum it may come."

The department announced on Tuesday that it would file a statement of interest in a campus free speech case. The case was originally filed by students against Georgia Gwinnett College, claiming that the institution had limited expression with its free-speech-zone policy. Mr. Sessions said the department would file more statements in the weeks and months to come.

It is not surprising that Mr. Sessions has taken up the cause of campus speech. Other members of the Trump administration, including Education Secretary Betsy DeVos, have used similar rhetoric. But does concrete involvement from the Justice Department suggest campuses should treat the issue with newfound care?

Criticizing Conduct Policies

Mr. Sessions criticized universities that have formal conduct policies that he said stifle free speech.

Boise State University’s Student Code of Conduct, he said, prohibits "conducts that a reasonable person would find offensive." And at Clemson University, the code bans verbal and physical acts that would create "offensive educational, work or living environments." The attorney general, however, says allowing free speech does not mean condoning violence such as that in Charlottesville, Va.

A spokesman for Boise State University told The Chronicle that the policy mentioned by Mr. Sessions, "specifically recognizes, in its very first section, that ‘students enjoy the same freedoms of speech, peaceful assembly, and right of petition that all citizens enjoy.’"

Similarly, Mark Land, vice president of university relations at Clemson University, said the institution welcomes "robust and vigorous discussions on all manner of topics." Regarding speech, he said the university "interprets and applies its policies concerning speech, including this provision of our Student Code, in a manner consistent with the law, including the First Amendment of the U.S. Constitution."

The Foundation for Individual Rights in Education, a nonpartisan organization that helps litigate some campus free-speech cases, cheered the administration’s interest in free speech.

"It’s a welcome development that the Department of Justice is looking at ways that they can help promote free speech on campus," Joe Cohn, the organization’s legislative and policy director, said in an interview. "And it is particularly important to see that the Department of Justice made their case that these rights affect students regardless of what part of the political spectrum the students fall on."

The primary thing the Department of Justice can do to promote speech, he said, is to join litigation as it has in the Georgia case. That will help courts understand the federal government’s position. But beyond the Department of Justice, Mr. Cohn has his eye on action by Congress.

"Congress can help pass legislation that ends speech codes," he said. "There’s no reason why schools must be allowed to create free-speech zones, for example. And having the administration support our efforts to end them would be helpful."

Mr. Sessions pointed to a lawsuit filed against Pierce College, a community college in Los Angeles, as an example of a free-speech zone gone awry. The suit alleges that a student, Kevin Shaw, was prohibited from passing out copies of the Constitution that had been translated into Spanish.

Conspicuously missing from Mr. Sessions’ remarks at Georgetown, however, was mention of professors whose comments — oftentimes critical the Trump administration — have ensnared them controversy.

"We’ve seen this in a number of cases where faculty will say something and they receive everything from death threats to harassment to emailed threats," said Rudy Fichtenbaum, president of the American Association of University Professors. These harassment campaigns, he said, are designed to intimidate faculty members and stifle speech.

Beyond the federal government, he said, it’s important for campus administrations to "stand up and protect the rights of faculty, even when faculty say things that not everyone will agree with." And in instances where professors’ remarks land them in hot water, institutions should quickly explain why free speech and academic freedom are important to the exchange of ideas, he said.

Mr. Fichtenbaum is not holding out a lot of hope that the Trump administration will forcefully defend professors in these instances. However, he said, it would be a positive if the White House would offer a full-throated condemnation of threats to faculty members.

And when people engage in activity that harasses and threatens professors, he said, the federal government or appropriate authority should act to stop it.

Adam Harris is a breaking-news reporter. Follow him on Twitter @AdamHSays or email him at