Several AGB consultants recently discussed AGB’s new publication, Freedom of Speech on Campus: Guidelines for Governing Boards and Institutional Leaders, and the complex issues it addresses. The conversation focused on a few key questions: What does freedom of speech mean? What types of issues are institutions dealing with today? What are some key considerations for boards and institutional leaders? Lee Tyner, general counsel of the University of Mississippi and a member of the advisory group for AGB’s Freedom of Speech on Campus paper, facilitated the conversation.
One important takeaway was the need for boards and institutional leaders to hold conversations around freedom of speech before an incident happens. Below are other related points to assist board members with these conversations.
- The campus is a marketplace of ideas. Boards and institutional leaders can use hate speech incidents on campus to create teachable moments, promote civil discourse, and open conversations on issues. Institutions cannot stop others from expressing offensive opinions, but they can educate students about how to respond.
- There are many misconceptions about hate speech and the First Amendment—especially whether hate speech is prohibited or protected. At the core of the First Amendment is the principle that we cannot treat people differently based on what they say, think, and express. Institutions, especially public ones, must comply with the First Amendment.
- Generational differences among board members, administrators, and students are causing people to talk past one another. Students tend to favor limiting speech to protect others from hurt; administrators and trustees favor more speech, not limits on it. When hate speech happens on campus, boards and institutional leaders shouldn’t assume there is an understanding of the First Amendment. A better strategy is leading with institutional values; respond to the repulsiveness of hate speech before talking about the need to comply with the law.
- In line with understanding students, board members and institutional leaders need to know the history of their institution. They should not learn about their institution’s racist past through student protests. Instead, they should talk about their institution’s history and values and any implications for the present.
- An effective strategy is to have a creed, statement of principles, or mission statement to frame the discussion of who you are and what you stand for as an institution. Find ways to make the document an integral part of the institution, such as embedding it in student, faculty, and staff orientations. The statement can serve as a ready response to incidents of hate speech on campus.
- Outside groups are using universities and colleges as stages for a broader audience (University of Virginia and University of California, Berkeley, are recent examples). As fiduciaries, boards should ensure their institution has clear policies about access to and use of space. The institution may own or manage buildings that could be used for speakers, rallies, demonstrations, and protests. What are the policies about who may request to use the space? What are the limitations? Prepare now and apply the policies without regard to the content of speech.
- Speech and conduct are different. The First Amendment does not provide rights to commit violent acts. Institutions cannot regulate hate speech, but they have a legal duty to protect students from violence. Boards should seek legal counsel, understand the First Amendment, and review and revise policies that address conduct, discrimination, and harassment.