FROM ONE DUPONT CIRCLE
Are We Creating Cultures of Advocacy or Avoidance?
In February, 2016 I attended the 37th Annual National Conference on Law in Higher Education in Orlando, Florida. The theme was Compliance, Consumers and the Constitution: Managing the Law and Policy Expectations of Conflicting Constituencies in Higher Education’s Second Civil Rights Revolution.
Each year, Peter Lake, Director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law, gathers general counsels of colleges and universities with student affairs professionals working in conduct, Title IX, compliance, as well as campus police.
I was asked to provide the opening keynote. I chose the topic Constructing Cultures of Advocacy in Which Delineated Rights Are Not Abstractions, but Realities.
The second keynote was by William Creeley, Vice President of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE). He spoke about the mission of FIRE, its Stand Up for Speech and Green Light projects.
The timing of these presentations seemed right for the attendees. There is so much at stake right now in higher education and in our broader society. Analysts from the Higher Education Research Institute anticipate that the level of student civil engagement, including campus protests, will be at the highest level in 50 years by the end of 2017.
I am not confident that risk-averse campuses will endure this season of discontent well. This makes me fear for the safety of everyone within the community. I fear that we are creating cultures of avoidance (of risk) rather than cultures of advocacy.
In our isolated efforts to minimize liability and risk (legal exposure, bad publicity and stakeholder backlash) we sometimes postpone or escalate the emergence of more serious problems by placing narrow policy standards over the individual needs and experiences of people. And, educators may fail to fulfill their responsibilities. Risk reduction lacks the conscious decision to support individual growth in moral and ethical decision-making, social identity development, and cultural competency. Student learning and development are unintended consequences rather than an intentional outcome in these settings. (Schrage and Giacomini, 2009)
Creeley’s review of 400+ campus policies regarding protected speech suggested that we have major work to do.
FIRE has launched the Stand Up For Speech Litigation Project as a large-scale national effort to eliminate unconstitutional speech codes through targeted First Amendment lawsuits. Working in rapid succession and in multiple federal circuits, the Stand Up For Speech Litigation Project seeks to generate additional legal precedent, widespread media coverage, and numerous policy revisions. Ultimately, this Project is working to generate the pressure necessary to rebalance the incentives on campus in favor of free expression. Efforts to suppress this constitutional right will predictably escalate the sense of urgency for activists.
My recommendation is to be proactive in teaching effective civic engagement, informing students of their rights and creating supportive campus environments in which no one gets hurt. Create an ethos of communication, non-violent contestation, and civility. Chancellors and Presidents must lead this cultural transformation.
Naturally, no one wants FIRE to call them up or send a letter suggesting that the campus is going to be exposed to litigation and liability for violation of freedom of expression or assembly or abuses of academic freedom. And, the way to avoid those calls is to avoid suppression of the constitutional rights on students on public universities.
Here are a few questions for campuses to consider.
- Are freedom of speech and assembly addressed in your campus climate surveys?
- Is there education for first year students on civil engagement and civil disobedience, constitutional rights, guidelines for non-violent assembly, and protest?
- Are there clear guidelines in place for campus safety officers regarding use of force?
- If a Memorandum of Understanding is in place with a local city police department, does it include policies and practices centered on student learning and development?
- Is Chancellor evaluation tied directly to campus climate?
My hope is that we are better prepared for student unrest than we were in 1970. This will only be true if we are developing cultures of advocacy rather than avoidance and part of that process means guaranteeing, at minimum, protected speech.
Schrage, J. M., & Giacomini, N. G. (2009). Reframing campus conflict: Student conduct practices through a social justice lens. Sterling, VA: Stylus.