Free Speech Threats and Litigation Nightmares Proposed by College of DuPage

The College of DuPage Board of Trustees is set to pass two policies on Thursday, November 19 (PDF of board packet) which present a danger to free speech on campus. These are virtually the same policies which were passed this spring and then rescinded by the board.

In policy 15-10, the problematic provision declares, “The College will protect an individual’s right to express their viewpoint or opinion, so long as it does not violate State or Federal law and is not detrimental to the College.” This policy is better than the original wording proposed last month, “The College will not tolerate discrimination and harassment based on an individual’s viewpoint or opinion.” However, it's still deeply flawed and likely to make the College of DuPage subject to endless litigation. The problem with limiting “viewpoint” discrimination is that a university is all about making distinctions based on opinions. For example, the hiring of a science professor requires discrimination against anti-science viewpoints. A college hires an astronomer and refuses to hire an astrologer based on opinion discrimination.

Remember that several years ago, David Horowitz's Individual Rights Foundation sued the University of California at Berkeley because it did not hire notorious radio talk show bigot Michael Savage as the head of its journalism school. Fortunately, the lawsuit went nowhere. But an “opinion” discrimination provision like this would open up a college to many more lawsuits. There are well-established legal precedents about race or sex discrimination, but the area of “opinion” discrimination is completely new territory where any lawyer could wage a reign of terror by lawsuit against any faculty who, for example, grade Holocaust denial “opinions” lower than historically accurate analysis.

The provision “not detrimental to the College” is not a solution to the problem because it's so vague. After all, banning a controversial viewpoint might actually be regarded as helping the College. The standards should be academic merit and freedom of speech, not what is detrimental to the College. It would be far better if the College of DuPage expressed its commitment to open expression in other policies, rather than making it part of the anti-discrimination provision where litigation is a common response.

Ironically, while ostensibly claiming to protect expression of opinion in this policy, the College of DuPage board is planning to pass another policy on Nov. 19 which will give the president of the College total authority to ban assemblages where people express their opinions.

Policy 10-110 declares, “The President and/or his authorized representative reserves the right to invite, acknowledge, or deny requests for assemblage as well as the right to control the time, place and manner of the assemblages.”

As the Illinois AAUP noted in its March 16, 2009 letter to the College of DuPage about this exact wording, “Under the Supreme Court rulings about the First Amendment, there can be reasonable regulations of time, place, and manner. But this does not mean a public college has total arbitrary power over the time, place, and manner of assemblies. Nor can the President be given complete authority to deny requests for assemblies. Only in very rare cases, where public safety is immediately endangered, can a public college prohibit an assembly or protest.”

FIRE (which criticized the original College of DuPage proposal) recently issued a new guide on campus speech policies which notes, “time, place, and manner restrictions must be narrowly tailored to achieve a significant governmental interest, and the burden on speech they cause may not be 'substantially broader than necessary to achieve the government's interest.'"

No one at a college should be given total power to deny requests for assemblages. (In fact, there should normally be no need to request permission to assemble.) This policy is so broad, it applies not only to protests, but also to meetings, classes, lectures, or any other events on campus. The First Amendment explicitly protects “the right of the people peaceably to assemble.” Exactly why do the College of DuPage trustees think that they have the power to overturn the First Amendment?

Even if this tyrannical power was exercised by a wise and just president, the policy is so clearly contrary to the Constitution that it could not withstand legal scrutiny. I can't figure out why the College of DuPage is so anxious to pass bad policies like these two proposals that will almost certainly increase lawsuits against the college. But these are the kind of badly-written policies that result when the faculty are cut out of the process completely. The policy on assemblages alone would make the College of DuPage one of the worst public colleges in the country when it comes to restrictive speech codes.