Despite criticism, UNC Board of Governors moving ahead with campus “free speech” policy

Despite criticism, UNC Board of Governors moving ahead with campus “free speech” policy

When the UNC Board of Governors holds its full board meeting this week, it will take up several controversial questions and proposals on which its task forces and subcommittees have been working for months.

One of the most controversial—the creation of a system-wide campus “free speech” policy—has met skepticism and resistance.

Last week, both the American Civil Liberties Union of North Carolina and the Foundation for Individual Rights in Education expressed concern about the direction of the proposed policy. Their criticism—and continued media coverage of the process—appears to be spurring some changes.

Part of a nationwide conservative movement, the speech policy aims to “restore and preserve free speech” on UNC campuses. It was spawned by a new state law that calls for punishing anyone who “substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others, including protests and demonstrations that infringe upon the rights of others to engage in and listen to expressive activity when the expressive activity has been scheduled pursuant to this policy or is located in a nonpublic forum.”

The ACLU raised concerns about the bill and is now warning that the policy, as crafted by the Board of Governors subcommittee, could create a chilling effect on campus speech.

The Foundation for Individual Rights in Education (FIRE), a non-profit closely tied to the political right, supported the state bill that prompted the policy. The group’s work in grading campuses according to their commitment to free speech has been cited by lawmakers across the country— including in North Carolina—in drafting campus speech bills.

But last week, after seeing the latest draft of the policy, the organization said it has concerns about how the UNC policy is shaping up.

Laura Beltz, FIRE’s program officer for policy reform, said the problem comes from the UNC Board following the lead of the University of Wisconsin’s Board of Regents.

The foundation praised a Wisconsin bill that called for a campus speech policy across its state university system, but ultimately opposed the policy that resulted. The reason: overly broad mandates for minimum punishments for those found in violation the policy.

That aspect of the University of Wisconsin policy is admired on the UNC Board of Governors. It has been cited by board members William Webb and Steven Long as the basis for parts of UNC’s initial draft policy.

“We are concerned that mandating a minimum punishment of suspension after two offenses could lead to disproportionate, unduly harsh punishments,” Beltz told Policy Watch late last week. “Instead, institutions should have the ability to impose sanctions for disruptive conduct based on the context and facts of each case.”

FIRE would prefer a second option laid out in the initial draft, which would presume suspension after a second offense but would let the individual institution determine if a different sanction is warranted.

In a new draft posted online this week, that second option was adopted. Though the new draft is not final and the full board will hold a further discussion on the matter this week, the change could allow individual campuses more autonomy in deciding how to discipline those who are found in violation of the new policy.

“FIRE is hopeful that the elimination of the mandatory second-offense suspension option from this draft indicates that it is now definitively off the table, and will not be included in the final policy,” Beltz said this week. “We will continue to monitor this policy’s adoption and implementation across the UNC institutions. ”

“Several institutions in the UNC System currently require students to submit a request prior to engaging in expressive activities on campus,” Beltz said. “These policies will soon be in violation of the Board’s policy, which will require institutions to allow for spontaneous expressive activity. FIRE stands ready to assist these universities in revising these policies to First Amendment standards in advance of the new policy’s adoption.”

At a Board of Governors subcommittee meeting earlier this month, Governance Committee Chairman Steven Long said he’s been disappointed by individual chancellors’ reaction to protests he thinks cross the line and would prefer a uniform sanction to allowing individual campuses and chancellors to decide on sanctions.

Beltz said FIRE finds the “material and substantial disruption” standard acceptable, but believes it will need to be properly applied.

“However, if the policy is applied to sanction expression that does not infringe upon the rights of others, such as protesting outside of an event or staging a brief or non-disruptive walkout of an event, FIRE will oppose such an application,” Beltz said.

Beltz did praise a section of the policy she said would go a long way toward eliminating campus “free speech zones” that hem in protests to certain—often less prominent—areas of campus.

That part of the policy reads:

“Students and faculty shall be permitted to assemble and engage in spontaneous expressive activity as long as such activity is lawful and does not materially and substantially disrupt the functioning of the constituent institution, subject to the requirements of this section. Access to campus for purposes of free speech and expression shall be consistent with First Amendment jurisprudence regarding traditional public forums, designated public forums, and nonpublic forums, subject to reasonable time, place, and manner restrictions.”

But the policy would still explicitly allow universities to impose “time, place and manner restrictions” on demonstrations. That is the very language traditionally used to justify free speech zones, though it has for years been a point of contention and the subject of lawsuits. The policy would also give campus administrators broad authority to interpret what is considered “materially and substantially” disruptive within the confines of the policy.

“State legislature efforts on First Amendment issues are hard to generalize about—state legislation can often provide a helpful clarification on aspects of the law (like legislation banning free speech zones),” Beltz said. “However, state legislatures can also overstep their ground and can threaten academic freedom rights by attempting to set the agenda for classroom instruction, or by trying to take away the discretion of institutions to make judgment calls based on particular circumstances (like the Wisconsin bill’s mandatory sanctions).”

Students, faculty and civil liberties advocates say the current board of governors is unlikely to assure the policy is carefully and appropriately applied. In the current political environment, in which the conservative dominated Board of Governors is populated with a number of former GOP elected officials and prominent lobbyists, critics say the policy is much more likely to be used as a political weapon.

“It’s clear that this policy targets university protesters,” said Michelle Rolanda Brown, a UNC student helping to organize for the removal of the “Silent Sam” Confederate monument on UNC’s Chapel Hill campus.

“A lot of what is being put forward is specifically targeting things we’re doing now that are not breaking the law, but it still targets us for punishment if we break a policy,” Brown said.

Pointing to the Board of Governors’ shutting down, ending the work of and firing the leaders of academic centers they politically oppose, Brown said the university community has little confidence the speech policy will not also be wielded as a cudgel.

Even now, before the policy is officially in place, Brown said university officials are already tightening speech and demonstration restrictions in anticipation of the policy and the climate it is creating.

“At our recent University Day demonstration we were told we could not hold up anything larger than an 8.5 inch by 11 inch sheet of paper,” Brown said. “In the past we’ve had large banners.”

That hasn’t stopped student protests, Brown said—and neither will any new speech policy.

“We’re going to have to be more creative and strategic in how we protest,” Brown said. “But they won’t stop us. I’m pretty confident students who don’t know these new rules will end up breaking them and that could have a chilling effect. At some point they’re going to have to look at this as our freedom of speech being limited too.”

The Board of Governors holds committee and full board meetings in Chapel Hill this Thursday and Friday, November 2nd and 3rd.

The board will meet in regular session 9:00 a.m. on Thursday and 9:00 a.m. on Friday in the Board Room of the UNC Center for School Leadership Development at 140 Friday Center Drive in Chapel Hill.

Three committee meetings were also scheduled for today via teleconference at the Spangler Center at 910 Raleigh Road in Chapel Hill.