Campus Free Speech From Berkeley in 1964 to the Chicago Principles

A conservative student with a folding table owes the other side a thank-you note. The legal and cultural machinery that now lets him set up that table, invite a speaker and hand out flyers on a public campus was built, in large part, by the other side. In the fall of 1964, a crowd of Berkeley students surrounded a police car, and a young man in his socks climbed onto the roof to make a speech about the right to talk politics on a college sidewalk. Few people in that crowd would have thought of themselves as ancestors of the Young Republicans' club. But history keeps its own books.

I find the story both funny and instructive, because it shows how quickly the roles on this issue can reverse. For sixty years the argument over speech on campus has swung back and forth, and the principle at the center, that a university is a place where ideas get tested rather than approved, has been defended by people on every side when they were the ones who needed it. Let me take you through it in order.

Berkeley, 1964: a rule about a sidewalk

The story starts with a small thing. At the University of California, Berkeley, there was a strip of university-owned sidewalk at the edge of campus, near Sproul Plaza, where student groups had long set up tables to recruit members and raise money for political causes. In September 1964, university administrators announced that those activities would no longer be permitted on that strip. Political advocacy and fundraising were off the table.

Students pushed back, and the group of organizations that did so was surprisingly broad. It included civil rights groups, who had been recruiting volunteers for causes in the South, and also student groups on the right, among them campus Republican and Goldwater organizations, which had every reason not to want a dean deciding which politics a student table could carry. The coalition that formed to protest the new rule was a mixture of left and right, because the rule threatened both.

On October 1, police arrested a former graduate student, Jack Weinberg, who was staffing a table for the Congress of Racial Equality. A crowd gathered and sat down around the police car with Weinberg inside. It stayed there for about a day and a half. Mario Savio, a philosophy student, took off his shoes and climbed on top of the car to speak. The administration eventually negotiated.

Then it flared up again. On December 2, Savio gave a famous speech on the steps of Sproul Hall, describing the university's operation as a machine whose gears had become odious enough that people had to put their bodies on them. Hundreds of students occupied the building, and on December 3 police arrested hundreds of them. Within weeks the university loosened its rules, and by early 1965 the campus allowed political advocacy at designated areas.

Here is where I owe you honesty about the politics. The Free Speech Movement became a vehicle for the left, and what followed on the Berkeley campus was a good deal rowdier and more radical than a sidewalk rule. Ronald Reagan ran for governor of California in 1966 partly by promising to restore order at the university, and shortly after he took office in January 1967 the Board of Regents dismissed the university's president, Clark Kerr. Conservatives had real grievances about the disruption that followed. But the original principle was not partisan. A rule that lets a dean pick which political tables are acceptable is a rule that will eventually be used against you.

1967: the Kalven Report and the neutral university

While Berkeley was erupting, a quieter conversation was happening at the University of Chicago. After the turmoil of the mid-1960s, Chicago's faculty appointed a committee chaired by the law professor Harry Kalven Jr. to consider the university's role in political and social action. Its report in November 1967 is one of the most important documents in the history of American higher education.

The core of the Kalven Report is the idea that the university is the home and the sponsor of critics, and is not itself the critic. A university exists to foster the free inquiry of its members, and to do that it has to remain neutral on the political and social questions of the day. If a university as an institution takes a side on a controversial issue, it pressures its members to conform. The report allowed that there could be rare occasions when the very mission of the university is threatened, but the default is silence.

Why does that matter to a conservative student today? Because an institution that issues official positions on every political issue sends a message to the student who disagrees: you are an outsider here. Institutional neutrality is a form of protection for the minority viewpoint on campus. It says the university will not use its authority to settle a debate that its scholars are supposed to be conducting. Other schools adopted similar approaches over time, and the debate over whether to keep them goes on.

1972: Healy v. James

The courts began to weigh in. In Healy v. James (1972), a group of students at Central Connecticut State College sought recognition for a local chapter of Students for a Democratic Society. The college president refused, in part because he disliked the group's philosophy and feared it would be disruptive. The Supreme Court, in an opinion by Justice Lewis Powell, held that the college could not deny recognition simply because it disapproved of the group's views. State colleges and universities, the court said, are not enclaves immune from the First Amendment. A school may require groups to follow reasonable rules, and it may act if a group actually disrupts campus life, but it may not use recognition as a weapon against disfavored ideas.

Read that through a conservative lens. The group in the case was a radical left organization, and I'd guess that few readers of this site would have joined it. But the rule protects a student chapter of Young Americans for Freedom or a pro-life club in exactly the same way. A public college deciding which student groups are respectable has chosen the role of censor.

The court reinforced the point in later years. In Widmar v. Vincent (1981), it held that a public university that opens its facilities to student groups cannot exclude a group because of its religious content. In Rosenberger v. Rector and Visitors of the University of Virginia (1995), it held that the university could not deny student activity funds to a Christian student magazine, Wide Awake, because of its religious viewpoint. These are some of the cases conservative students rely on most, and they trace back to the same foundation: a public university cannot discriminate on the basis of viewpoint.

The late 1980s and 1990s: speech codes and the courts

By the late 1980s the fight had changed sides. After a string of incidents of racial harassment on campuses, many universities adopted codes that prohibited offensive or demeaning speech. The motive was understandable. Schools wanted students from every background to feel welcome, and the incidents were real. But the codes were broad and vague, and they ran into the First Amendment.

In 1989, a federal court in Michigan struck down the University of Michigan's policy against discriminatory harassment in Doe v. University of Michigan. Judge Avern Cohn found that the policy was both overbroad, because it reached constitutionally protected speech, and vague, because students could not tell what it prohibited. In 1991, a federal court in Wisconsin, in UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, struck down a University of Wisconsin rule prohibiting discriminatory comments, reasoning along similar lines.

Notice the flip. In 1964 it was the left that wanted the freedom to speak and the administrators who wanted to limit it. By 1989 the administrators, now often sympathetic to the left's concerns, were the ones writing the rules, and the people suing for free expression included students and groups from across the spectrum. The principle stayed the same. The people invoking it changed. That is the best evidence I know that free speech is not a partisan prize but a rule that protects whoever is out of power on a given campus.

Many courts struck down such codes in the years that followed, and in 1999 a pair of scholars, Alan Charles Kors and Harvey Silverglate, founded the Foundation for Individual Rights in Education, known as FIRE, to defend student and faculty speech rights from all points of view. It has been a regular litigant and advocate ever since.

2014: the Chicago principles

By the early 2010s, controversies over invited speakers, protests that shut down events and demands for protection from offensive ideas had put the question back in the headlines. The University of Chicago, under President Robert Zimmer, appointed a Committee on Freedom of Expression, chaired by the law professor Geoffrey Stone, to restate the university's commitments. The committee produced its report in 2014, and it quickly became known as the Chicago principles.

The statement is short and clear. It says that the university's fundamental commitment is to the principle that debate or deliberation 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 wrongheaded. It says that it is not the proper role of the university to shield individuals from ideas and opinions they find unwelcome, disagreeable or even deeply offensive. It also says that the university may restrict expression that violates the law, defames a specific individual, constitutes a genuine threat or harassment, unjustifiably invades substantial privacy or confidentiality interests, or is otherwise directly incompatible with the functioning of the university. And it adds a key sentence: freedom to speak includes the freedom to protest, but those who protest may not obstruct or otherwise interfere with the freedom of others to express views they reject.

In August 2016, the University of Chicago's dean of students sent a letter to incoming first-year students telling them that the university did not support so-called trigger warnings, did not cancel invited speakers because their topics might prove controversial, and did not condone the creation of intellectual safe spaces where individuals can retreat from ideas that conflict with their own. That letter got national attention.

Many other colleges have since adopted or endorsed the Chicago statement or something close to it. That tells you how much the center of gravity moved. The same principle that protected the Berkeley table protects the visiting conservative speaker.

The strongest objection

A thoughtful critic will say that principles on paper are one thing and a campus in practice another. Students from historically marginalized groups, the critic argues, may feel that unlimited speech makes the campus a hostile place. A school has a duty to ensure that every student can learn without harassment. That is a serious point, and the Chicago statement itself acknowledges that harassment and threats can be restricted.

The answer, I think, has three parts. One, the line the law draws is between speech that offends and conduct that harasses, and the law already allows schools to address the second. Two, the history I've just traced shows that rules written to protect one group from offense are routinely turned against other groups, and against the very dissidents they were meant to help. Three, a university that cannot tolerate disagreement fails at the thing it exists to do. A student who learns to answer an argument he hates is better prepared than one who learns to demand that someone else take it away.

What a family should take from this

If you are a parent of a college student, or a student yourself, the practical lessons are plain. At a public college, the First Amendment applies, and the cases from Healy to Rosenberger give you tools. At a private college, the protections come from the school's own promises, and you should read its policies the way you would read a contract. Ask the admissions office whether the school has adopted a free-expression statement like the Chicago principles. Ask what happened the last time a controversial speaker was invited. A school's answers will tell you a lot.

For practical steps on defending your rights as a student, read A Conservative Student's Playbook for Standing Up for Speech on Campus. For the legal landscape, try Seven Myths About Free Speech on Campus, Tested Against the Cases and Eight Supreme Court Cases That Explain What the First Amendment Protects, which includes Tinker, the high school case behind much of this. And for the long tradition of a rough-and-tumble debate, read The Founders' Partisan Press Was Far Nastier Than Anything on Your Feed.

The bottom line

• The free speech principles that protect conservative students today were won in large part by the left in 1964. The principle is not partisan, and it protects whoever is out of power on campus.
• Public colleges must follow the First Amendment. Cases such as Healy, Widmar and Rosenberger forbid viewpoint discrimination against student groups, and courts struck down broad speech codes in 1989 and 1991.
• The Chicago principles state the standard in plain English: offensive ideas are not a reason to silence a speaker, and protest may not obstruct the speech of others.
• Before you choose a college, ask whether it has adopted a free-expression statement, and ask how it handled its last controversial speaker.
• If your student's rights are violated at a public school, document everything, ask for the policy in writing and contact a group that handles such cases. Do not let anyone tell you that a rule is a law when it is not.