Thanks to Lt. Gov. Dan Forest, North Carolina is the First State to Enact Campus Free Speech Legislation

With Governor Roy Cooper (D) taking no action on the bill, the state of North Carolina has enacted the Restore Campus Free Speech Act, the first comprehensive campus free-speech legislation based on the Goldwater proposal. That proposal, which I co-authored along with Jim Manley and Jonathan Butcher of Arizona’s Goldwater Institute, was released on January 31 and is now under consideration in several states. It’s fitting that North Carolina should be the first state to enact a Goldwater-inspired law.

North Carolina Lieutenant Governor Dan Forest has been the guiding force behind the Restore Campus Free Speech Act and deserves great credit for moving it through the legislature. I’m particularly grateful to Forest, with whom I’ve been working since shortly after I laid out “A Plan to Restore Free Speech on Campus” here at NRO in late 2015. Forest and his staff provided critical early encouragement and support for the approach that eventuated in the Goldwater model bill. With the passage of the first state law based on that model, Forest has established himself as a national leader on campus free speech.

The final version of the North Carolina Restore Campus Free Speech Act passed by a margin of 80 to 31 in the House, with 10 Democratic ayes (about a quarter of the Democrats present). The final version passed the Senate by a margin of 34 to 11 along strict party lines. Given the intense party polarization in North Carolina, the substantially bipartisan House vote was impressive. Governor Cooper’s decision to let the bill become law with no action is also interesting and instructive.

The North Carolina Restore Campus Free Speech Act achieves most of what the Goldwater proposal sets out to do. It ensures that University of North Carolina policy will strongly affirm the importance of free expression. It prevents administrators from disinviting speakers whom members of the campus community wish to hear from. It establishes a system of disciplinary sanctions for students and anyone else who interferes with the free-speech rights of others, and ensures that students will be informed of those sanctions at freshman orientation. It reaffirms the principle that universities, at the official institutional level, ought to remain neutral on issues of public controversy to encourage the widest possible range of opinion and dialogue within the university itself. And it authorizes a special committee created by the Board of Regents to issue a yearly report to the public, the regents, the governor, and the legislature on the administrative handling of free-speech issues.

Although the university managed to weaken the bill at points, with one significant exception that weakening amounts to less than meets the eye. Some of the bill’s language on institutional neutrality was struck, for example, yet the law still affirms the importance of administrative neutrality.

The dependence of campus freedom of speech on institutional neutrality was famously affirmed by the University of Chicago’s Kalven Report of 1967. Likewise, the annual reports on campus free expression to be released in North Carolina will assess the university’s successes or failures at maintaining a posture of institutional neutrality. This will discourage the university from, say, joining the “fossil fuel” divestment campaign, or the campaign to boycott, divest, and sanction the state of Israel.

The university did manage to weaken the “cause of action” provision, which would have allowed anyone whose expressive rights under the new law were violated to recover reasonable court costs and attorney’s fees. However, individuals whose rights under the new law are violated still have the option of suing, and can turn to any number of organizations (e.g. the Foundation for Individual Rights in Education, the Alliance Defending Freedom, the Center for Individual Rights, or the Goldwater Institute) for representation.

The university also succeeded in weakening the provision that designates public areas of the campus as “public forums.” Potentially, this would allow the university to cabin free speech to restricted zones. That is a serious concern and certainly bears watching. It should be noted, however, that the law also sets up a special committee within the UNC Board of Governors to issue an annual report on campus barriers to free expression. This provision draws the Board of Governors into more active oversight of campus free speech and serves as a check on administrative abuse on issues like free-speech zones.

In one area, however, the North Carolina bill is substantially weaker than the original Goldwater proposal. Although the North Carolina law will establish sanctions for students who shut down the speech of others, will protect the due-process rights of the accused, will inform students at freshman orientation of penalties for shout-downs, and will see that the administration of discipline is monitored by the Board of Governors, the provision that would have mandated suspension for students twice found responsible for silencing others was struck.

That provision is important for a number of reasons. First, the punishment is just. A student who twice silences visiting speakers or fellow students obviously hasn’t learned a lesson from the initial punishment. Yale’s famous Woodward Report of 1974, the classic statement on campus free expression, recommended suspension or expulsion after only a single shout-down. The Goldwater proposal is mild by comparison. Second, since universities regularly ignore shout-downs or hand out meaningless punishments, the mandatory suspension for a second offense is the only way to prevent schools from undermining the law by handing out wrists-slaps ad infinitum. Finally, when students learn at freshman orientation that state law requires a significant suspension for participation in a second shout-down, this will have a powerful deterrent effect.

Without the mandatory suspension for a second offense, the university could conceivably undermine the law through lax enforcement. Yet it’s not as simple as that. If the university refuses to discipline shout-downs in the wake of passage of this law, there will be consequences. For one thing, the annual report of the Board of Governors will either condemn the refusal to discipline, or the committee will itself be subject to public criticism. A negative report on the administrative handling of discipline would give the Board of Regents a reason to replace administrators, and legislators a reason to cut university funds.

A university that refuses to discipline students who silence others is also inviting a renewed campaign to pass the mandatory suspension for a second offense. This applies to other states as well. Tennessee, for example, has just passed a campus free-speech bill. While the Tennessee law is excellent in many respects, it does not systematically address the issue of discipline for shout-downs. Should the University of Tennessee refuse to discipline shout-downs in the coming years, the limitations of the new law will be evident and a campaign to add discipline provisions will ensue.

Right now only bills based on the Goldwater proposal systematically address the problem of shout-downs. If Goldwater-based bills are weakened or campus free-speech bills that don’t deal with shout-downs are passed, universities that refuse to discipline shout-downs are sure to face further legislative campaigns. Knowing that laws can be revisited and that public scrutiny will now be high should encourage universities to take their enforcement responsibilities seriously.

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