David French on The False Advertising of Free Thought on Campus

Andy Nash speaks with David French, who serves as senior counsel at the Alliance Defense Fund Center for Academic Freedom. Nash and French speak about the bait-and-switch nature of higher ed, where freedom of inquiry and expression is promised, even while campuses desperately work to enforce a rigid uniformity of opinion on controversial issues.

French is author of the Guide to Religious Liberty on Campus and a frequent contributor to National Review Online’s Phi Beta Cons.

Key Take-Aways

  • 2:25 – The dominant world view in our public universities is secular and Left-leaning (20 secs)
  • 4:38 – Students have been expelled and professors have been denied promotions (20 secs)
  • 8:06 – Colleges promote free inquiry, but then demand conformity on controversial issues (1 min)
  • 10:11 – Private colleges must deliver on what they promised, or it’s a breach of contract (2 mins)
  • 12:28 – Federal money doesn’t automatically subject a private university to the constitution (1 min)
  • 13:55 – ADF’s goal is increasing liberty and opening the market place of ideas (1 min)
  • 16:28 – Ideologues and bureaucrats team up to craft broad campus policies (1 min)
  • 17:55 – The Left dominates campuses, and so crafts policies that are advantageous. (1 min)

Andy’s Show Notes

Why do colleges and universities block pro-life expressions and have the students of such demonstrations arrested?  Why do they illegally require nursing students to perform abortions?  And why do some exclusively define religious discrimination as “Christians oppressing non-Christians,” while others use technicalities to de-recognize Christian student groups?  And what prompts some schools to craft overly broad speech code policies that state “acts of intolerance shall not be tolerated,” in which they get to subjectively define whatever “attitude or belief” is intolerant?

In our recent interview with David French of the Alliance Defense Fund, we tackled the question of where universities’ rights and authorities begin and end, and examined why they craft the policies they do.   Specifically, we looked at examples of religious associational and expressive rights, and free speech rights within higher education, and the legal work of the Alliance Defense Fund.  David French has handled several dozens of such cases with the ADF, as well as when he was with the Foundation for Individual Rights in Education (although the focus of the ADF is not limited to educational institutions).

David explained that public universities are agents of the state and therefore are subject to guaranteeing all the same protections for individuals as the government.  However, private institutions have the same rights as other private citizens, and are free to define themselves however they want.  Thus first amendment guarantees–congress shall make no law–does not apply in the same way as for public universities.  What does apply to private institutions is to honor their contracts and promises.  Private colleges for example have every right (and duty) to make clear from the outset to students what expectations must be followed, (such as codes of conduct, dress, etc.) and what values are to be upheld.  As long as they act accordingly with those prescriptions, there is no breach of contract.  The only other factor outside of contract, is that private schools must follow the specific guidelines, or “strings attached” for public money they receive.  But this does not force them to act in every other way as an agent of the state.

Universities often will craft policies in the name of tolerance and diversity to foster a climate of openness and inclusiveness.  This is arguably done to proactively try to avoid contentious conflicts as well as to show they took proactive steps in cultivating an environment free from hatred and bigotry.  This tends to be very important when a school is being sued by a student or an employee for some form of perceived discrimination or harassment.

However, there are two problems with many of these policies.  The first is that they are often overly broad and far-reaching, leaving a very open-ended vague sense of what the policy could or could not apply to and how.  That lack of certainty in a policy arguably leads to a chilling effect on free speech.  The second problem ends up being the very specific and selective application of the broad policies.  When a school exclusively defines religious discrimination as “Christians oppressing non-Christians”, then we begin to see who will bear the brunt of potentially applicable intolerance policies.

So why do universities do it?  Is it merely a question of political and social bias, or something more pragmatic?  In my review of our interview of with Greg Lukianoff of the Foundation for Individual Rights in Education, I asked why universities, supposedly bastions of free thought and expression, would risk such First Amendment liabilities.  I concluded that review with:

“They know that students are largely ignorant of what rights they do have as adults coming into college.  Their prior years of schooling did little or nothing to educate them of their individual rights.  So over the years it has become apparent to college administrators which types of squeaky wheels needed to be immediately greased and which could be safely dismissed as empty cans rattling the most.

Some colleges may have bought into the false choice that it is safer for them to err on the side of legal challenges of free speech violations as opposed to claims of harassment.  Lukianoff argues the massive expansion of university bureaucracies over the last decade is a huge impediment to bringing about significant reform…”

However, I now put the question to David French.  Would not even a politically neutral administrator, under strong legal advice from their counsel on retainer, choose to err on the side of abridging free speech rights (usually mitigated by groups like ADF in letter-writing campaigns), as opposed to dealing with the far more costlier discrimination or harassment suit?  In other words, wouldn’t the university, as any institution simply just give in to whoever gave them the greater pressure?

David argues there is a combination of ideology and bureaucracy at play within universities leading them to continue drafting policies that end up being no longer ideologically neutral.  He says the combination is typically one in which the ideologues of the Left who predominate the university are the ones crafting the policies, and therefore they produce policies that are designed to satisfy those ideological needs of the college.  David says that if 8 or 9 out of 10 professors (and similar numbers of administrators) are on the Left and are having a policy discussion, then it’s no surprise we see the policies we do.

However, it would be interesting to investigate if the over-representation of left-wing ideology is more-so among faculty–who are chiefly responsible for writing academic policy–as opposed to administrators who are presumably responsible for codes of (non-academic) conduct and policies governing employees, hires, etc.  Just who exactly is responsible for drafting policies such as “intolerance shall not be tolerated”.  This is something we’ll explore further on Inside Academia.

But we come full circle with the false advertising of free thought on campus.  Private schools must at least be consistent with their existing policies in guaranteeing promised due process, the right of free inquiry and freedom of conscience, or what have you.  Public universities, as agents of the state, must guarantee the full range of such protections by law either way, in both the written word and in deed.  But neither private nor public colleges can claim to uphold such rights and then deny them.  The extent to which they do, groups like the ADF and the FIRE work to hold them accountable.  Find out how the ADF has worked to rectify these discrepancies and injustices in our interview with David French.