It’s no secret that conservative ideas are not welcomed in modern day universities that are governed by “safe spaces and micro-aggressions”. However, that has come to an abrupt end in Tennessee as state officials have passed the Campus Free Speech Protection Act through the house of representatives at 85-7 and the senate with 30-0 and signed into law by Governor Bill Haslam.
The law will force all public colleges and universities in Tennessee to adopt free speech policies consistent with the University of Chicago’s 2015 Stone Report. The law expressly prohibits the use of controversial “free speech zones” that have been used to force speech that the university does not like into isolated zones unable to be heard or viewed.
The law will also prohibit the ability of University administrators to rescind invitations from students or faculty to speakers with whom the University disagrees or claims to fear disruption. This will in effect remove the “heckler’s veto” option that has been used against conservative speakers such as Ann Coulter, Ben Shapiro, Milo Yiannopoulos, Gavin McInnes, John Derbyshire, Betsy , and more controversial speakers such as Richard Spencer.
The heckler’s veto has not been used exclusively by the left against the right but the vast majority of such cases are by the left on the right. In addition to the difference in proportionality, most cases of heckler’s veto by the right are used against criminals and terrorists such as Bill Ayers who was part of a terrorist group known as “Weather Underground” that told students to kill their parents. On the other hand, the heckler’s veto when used by the left has almost always been to political opinions and speeches that they disagree with.
Another clause of the law demands that universities use the actual legal definition of student-on-student harassment that was decided on by the Supreme Court which is defined as “behavior so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Until now research by organizations such as F.I.R.E. (Foundation for Individual Rights in Education) has shown that many universities use definitions of harassment that are far different from the one defined by the Supreme Court.
Examples of the low harassment standards of universities provided by F.I.R.E. include Oregon State University, Slippery Rock University of Pennsylvania, and Duke University. The examples showcase how universities have side-skirted the Supreme Court definition by doing things such as leaving “harm” undefined, including a clause negating the Supreme Court standard, and stating that they follow the Supreme Court standard then provide a list of protected speech as being in violation.
In Oregon State University they define sexual harassment as “sexual or gender-based behavior that is unwanted and/or nonconsensual, and has the effect, intended or unintended, of producing harm.”, which leaves what constitutes “harm” undefined, which allows the university to take action on anything ranging from slight discomfort to the “serious interference with educational opportunities” mandated by the supreme court definition.
Slippery Rock University of Pennsylvania includes the Supreme Court definition as required by law but then negates it entirely by providing a separate clause at the end. The clause states “[f] or purposes of this policy, even if misbehavior is not sufficiently severe or pervasive to constitute a basis for an award of damages or other relief to a victim under state or federal law, Slippery Rock University may still issue disciplinary action”, this completely nullifies the legal standard by allowing the university to conduct punishment on any action it sees fit despite the standard.
Duke University also includes the Supreme Court legal standard but provide a list of examples of things that the university considers to be in violation of the standard. Part of the list includes “[u] nwelcome comments or jokes of a sexual or explicit nature,” as an example of a violation of the legal standard. While it is possible that such comments or jokes could be in violation of the standard if it was severe enough, the example used would also include speech protected by the first amendment that fails to meet the legal standard of harassment.
The final part of the new law will forbid universities from discriminating in the funding of student groups based on their viewpoints and prevent faculty from being punished for protected speech in classrooms unless it is “not reasonably germane to the subject matter of the class as broadly construed, and comprises a substantial portion of classroom instruction.”
The law is viewpoint neutral but comes at a time that universities have been wantonly banning conservative speakers, denying the funding or outright creation of conservative and White student groups, as well as punishing professors that make right-wing statements. In the recent years Virginia, Missouri, Arizona, Colorado, Utah, and Kentucky states have all passed a law that bans “free speech zones” in particular but this new law in Tennessee could see the passage of much more encompassing laws in other states to protect the first amendment rights of students and faculty.
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