Why colleges don’t care about free speech

The solution is to create an incentive for universities to protect open inquiry — the fear of lawsuits.

Ilya Shapiro is an administrator at Georgetown University. Picture; AFP.

Georgetown University’s law school violated its own speech policy last week when it placed Ilya Shapiro, a newly hired administrator, on leave over a tweet that offended some students. Why do universities make grandiloquent commitments to freedom of speech, then fail to honour them? It isn’t so much an issue of ideology as a problem of incentives.

Georgetown’s policy states that speech “may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or ill conceived.”

Ilya Shapiro is being investigated over his tweet.

Yet that’s what happened when Mr. Shapiro tweeted that the candidate he viewed as “objectively” most qualified for the Supreme Court “alas doesn’t fit into latest intersectionality hierarchy so we’ll get lesser black woman.”

The dean of Georgetown Law, William Treanor, announced that Mr. Shapiro’s comment was “at odds with everything we stand for at Georgetown Law” and ordered “an investigation into whether he violated our policies and expectations on professional conduct, non-discrimination, and anti-harassment.”

Statement on my starting @GeorgetownLaw tomorrow but immediately being placed on paid nonpunitive administrative leave pending investigation of my tweets: pic.twitter.com/u9xdNQY6aO

— Ilya Shapiro (@ishapiro) January 31, 2022

Regardless of Mr. Treanor’s political views, he has every reason to do this. University administrators get no reward for upholding abstract principles. Their incentive is to quell on-campus outrage and bad press as quickly as possible. Success is widely praised, but there is no punishment for failing to uphold the university’s commitment to free speech.

The solution is to create an incentive for schools to protect open inquiry — the fear of lawsuits. First, universities should add a “safe harbour” provision to their speech policies stating: “The university will summarily dismiss any allegation that an individual or group has violated a university policy if the allegation is based solely on the individual’s or group’s expression of religious, philosophical, literary, artistic, political, or scientific viewpoints.”

This language would be contractually binding. Second, free-speech advocates should organise pro bono legal groups to sue schools that violate the safe-harbour provision. This would make it affordable for suppressed parties to bring suits over the violation of their contractual rights.

University counsel, whose primary job is to protect the institution from being sued, would then have incentive to curb administrators’ behaviour. They might require that a

legations of harassment be reviewed by a member of the counsel’s office who knows how to distinguish complaints about speech from genuine harassment. They almost certainly would revise the university’s antiharassment training to stress that students and faculty shouldn’t file complaints based solely on the content of the viewpoint being expressed. These and other steps they might take would give universities’ abstract commitments to freedom of speech some real bite.

In the absence of damage awards, university administrators won’t act against their own interests merely to uphold an abstract commitment to free speech. The threat of such awards would make universities like Georgetown put their money where their mouths are.

The Wall St Journal