Challenges to the Freedom of Speech on College Campuses: Part Ii

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CHALLENGES TO THE FREEDOM OF SPEECH ON COLLEGE CAMPUSES: PART II

JOINT HEARING BEFORE THE SUBCOMMITTEE ON HEALTHCARE, BENEFITS, AND ADMINISTRATIVE RULES AND THE SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS OF THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM HOUSE OF REPRESENTATIVES ONE HUNDRED FIFTEENTH CONGRESS

SECOND SESSION

MAY 22, 2018

Serial No. 115–105

Printed for the use of the Committee on Oversight and Government Reform (

Available via the World Wide Web: http://www.Govinfo.gov http://oversight.house.gov

U.S. GOVERNMENT PUBLISHING OFFICE 32–667 PDF WASHINGTON : 2018

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SHERIA CLARKE, Staff Director WILLIAM MCKENNA, General Counsel MICHAEL KOREN, Professional Staff Member SARAH VANCE, Healthcare, Benefits, and Administrative Rules Subcommittee Staff Director ANUDEEP BUDDHARAJU, Counsel SHARON CASEY, Deputy Chief Clerk DAVID RAPALLO, Minority Staff Director

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SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS Gary Palmer, Alabama, Chairman Glenn Grothman, Wisconsin, Vice Chair Jamie Raskin, Maryland, Ranking Minority John J. Duncan, Jr., Tennessee Member Virginia Foxx, North Carolina Mark DeSaulnier, California Thomas Massie, Kentucky Matt Cartwright, Pennsylvania Mark Walker, North Carolina Wm. Lacy Clay, Missouri Mark Sanford, South Carolina Vacancy

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Page Hearing held on May 22, 2018 ...... 1 WITNESSES Dr. Allison Stanger, Russell J. Leng ’60 Professor of International Politics and Economics, Middlebury College, Vermont Oral Statement ...... 7 Written Statement ...... 9 Mr. Tyson Langhofer, Senior Counsel and Director, Center for Academic Freedom, Alliance Defending Freedom Oral Statement ...... 13 Written Statement ...... 15 Dr. Bret Weinstein, Professor In-Exile, Evergreen State College, Washington Oral Statement ...... 25 Dr. Shaun Harper, Provost Professor of Education and Business, Allen Chair in Urban Leadership, University of Southern California Oral Statement ...... 27 Written Statement ...... 29 Dr. Robert P. George, McCormick Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions, Prince- ton University, New Jersey Oral Statement ...... 33 Written Statement ...... 36

APPENDIX Response from Mr. Langhofer to Questions for the Record ...... 94 Response from Dr. George to Questions for the Record ...... 98 Response from Dr. Stanger to Questions for the Record ...... 100

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Tuesday, May 22, 2018

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON HEALTH CARE, BENEFITS AND ADMINISTRATIVE RULES, JOINT WITH SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM, Washington, D.C. The subcommittees met, pursuant to call, at 2:05 p.m., in Room 2154, Rayburn House Office Building, Hon. Jim Jordan [chairman of the Subcommittee on Healthcare, Benefits, and Administrative Rules] presiding. Present from the Subcommittee on Healthcare, Benefits, and Ad- ministrative Rules: Representatives Jordan, Meadows, Mitchell, Krishnamoorthi, and Plaskett. Present from the Subcommittee on Intergovernmental Affairs: Representatives Palmer, Duncan, Foxx, Massie, Raskin, and DeSaulnier. Also Present: Representatives Stefanik, Handel, Brat, and Perry. Mr. JORDAN. The subcommittees will come to order. We want to welcome our guests. We’ll introduce you here in just a few minutes. You guys have done this, many of you have done this before. You know how this works. We’ll have a few opening statements from some members, and then we’ll get right to your individual testimony and then into questions. And so, I want to recognize first the subcommittee chairman from the great State of Alabama, Mr. Palmer, is recognized for an opening statement. Mr. PALMER. Thank you, Mr. Chairman. Thank you all for sharing your experiences on this critical topic. Ensuring our future of generations achieve a comprehensive well- rounded education is one of our most important pursuits that we can ever hope to achieve. Parents encourage their children to attend college in hopes that they are given the tools to thrive in society and in their lives. I would hope that all colleges, universities, would want their students to mature into adults who are well-prepared in every aspect of integration into our culture, into our society. Adults who can understand that their classmates may not agree 100 percent with them. Adults that can find commonality with those who grew up different from themselves. But the mission of an intolerant group of students who are complacent, and sometimes not so complacent, (1)

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00007 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 2 support of universities has been to ensure that only one point of view gets expressed. When did they get into business of not challenging students’ world views? It is well-established that States have legislative authority in setting education policy. It is no surprise that they have taken on the mantle of defending free speech on public campuses. States like North Carolina have banned what some of colleges refer to as free speech zones. These are small areas that some universities have confined their students to allow them to exercise their freedom of speech. Other States like Missouri and Utah have implemented small monetary awards, if a court finds violations of free speech on a college campus. The Wisconsin School System President, Ray Cross, noted perhaps the most important thing we can do as a university is to teach students how to engage and listen to those with whom they differ. If we don’t show students how to do this, who will? In order to prevent substantially disruptive students from derail- ing events, the school system has adopted disciplinary measures on students who seek to usurp a speaker’s First Amendment rights. The Federal Department of Justice stated they will not stand by idly while public universities violate students’ constitutional rights. The Department of Justice has filed three statements of interest in- volving alleged First Amendment violations to students by universities. America’s founding and our Constitution was premised on the exchange of ideas. Imagine where we would be right now if our country’s forefathers were muted by their opponents. I want to thank the witnesses, again, for joining us to discuss how we can better improve our students’ most fundamental protection, the freedom to express their views, and I would add, the freedom to associate and assemble. With that, Mr. Chairman, I yield back. Mr. JORDAN. I thank the gentleman for his opening statement. I now recognize the gentleman from Maryland, Professor Raskin. Mr. RASKIN. Mr. Chairman, thank you very much. I’m delighted to be with everybody today. As a professor of constitutional law and the First Amendment and someone who has been a volunteer attor- ney with the ACLU, and I served on the board of FIRE, these issues are of great interest and importance to me. And we need our colleges and universities to be modeling the best policies of freedom and toleration today, because we know we’re getting all the wrong instructions from the highest levels of government today. Over the weekend, we learned that the President, who is unhappy with the coverage he gets in The Washington Post, and blames it on its owner, Jeff Bezos, has repeatedly pushed Postmaster General Megan Brennan to double the rates that the Postal Service charges Amazon.com for delivering its products. This silly effort to retaliate against Mr. Bezos, an American busi- nessman, because of unwanted news coverage, is an outrageous violation of the First Amendment, more characteristic of the political ethics of a dictator in a banana republic than it is of the Presi- dent of the United States.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00008 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 3 Nonetheless, it is always true to form for this President, who has selectively excluded media entities from White House press con- ferences, leveled angry threats against NBC, whose license he said should be challenged and revoked, and has issued frequent broad- sides against the media, which he describes as the enemy of the people. Here in Congress, we have a colleague who was a candidate actually violently assaulted a reporter who asked him an unwanted question. According to the Fox News crew which reported it, he grabbed the reporter by the neck with both hands, and slammed him into the ground behind him, then began punching the reporter. These kinds of attacks on other people’s free speech reflect not just profound personal insecurity, but an intentional ignorance of constitutional values. An ignorance which is especially dangerous in people who wield State power. So we do need an aggressive defense on campus about the enlightenment principle articulated by Voltaire, ‘‘I disagree with everything you say, but I will defend with my life your right to say it.’’ The problem these days, of course, is that on campus and in the media, everyone defends only the free speech that they actually support or find useful. When racist misogynists and outright provocateurs like Milo Yiannopoulos or Richard Pierce get drowned out by hecklers, or driven off of a liberal campus like Berkeley, conservatives blow the whistle on left wing political correctness and vigilante censorship, and well they should. When a group of students menaced and assaulted Professor Stanger who was with Charles Murray, this was outrageous, and conservatives denounced it. The liberals should be denouncing it, too. When Liberty University, this past April, banned from campus and threatened to have arrested Shane Claiborne, a Christian social activist who advocates for nonviolence and wanted to conduct a peaceful vigil against gun violence and for gun safety reforms, liberals were up in arms about right wing political correctness and censorship on campus, but conservatives were completely silent. When Georgetown refused to recognize Hoyas for Choice, a pro- choice student group, and discriminates against them in their ability to preserve rooms, post notices for meetings and so on, liberals cry foul and denounce right wing censorship on campus, but conservatives stay mum. And when we learned a couple weeks ago that George Mason, which reportedly granted faculty hiring and firing authority to Charles Koch, a billionaire oil executive who made a $50 million gift to the school, progressives erupted in protest over this violation of academic freedom and independence. But we heard nothing from the people who were agitated about the heckling and juvenile inter- ruptions of Milo Yiannopoulos or other provocateurs on campus. Now, there are complex issues in this field, which I hope when can address, like the whole subject of disinvitation, someone who makes an invitation presumably has a right to disinvite, too. After all, the invitation goes to a guest who appears at the grace of the host. On the other hand, I don’t think it’s the most polite thing to do. I’m not sure it’s unconstitutional, but that’s something I think is worthy of some discussion.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00009 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 4 The most vexing issue, I think, is the problem of serious hate speech interlaced with weapons. We saw that the alt-right movement is capable of deadly violence. In August of 2017, in Charlottesville, when 2 days of racial and religious incitement, some of it on the UVA campus, led to the murder of Heather Heyer, the deaths of several officers in a heli- copter, and the injury of more than a dozen other people. Given this kind of climate and the serious fear the college presidents and deans have, and the heavy legal liability they possess, what reasonable steps and precautions may they take to preserve peace on campus while stillrespecting the freedom of expression? That is a serious issue that deserves some serious analysis. I am opposed to free speech zones, because I have always believed that America itself is the free speech zone, and it cannot be cordoned off and quarantined at the far edges of campus. But what can administrators reasonably do? This is something that we need real advice and direction on. I hope we can revive a robust free speech culture on campus today, Mr. Chairman, one which respects the rights and freedoms of all. Thank you very much. Mr. JORDAN. I thank the gentleman. Let me just, again, thank our witnesses for being here and for my colleagues for being here this afternoon to discuss the First Amendment, one of the great freedoms the American people enjoy. And we’re doing so at a time where in the not too distant past, we have seen the Federal Gov- ernment, specifically the IRS, target people for exercising their First Amendment free speech political rights. We do so at a time where over the past academic year, there have been several troubling incidents at colleges across the country. And today, we hear firsthand from our witnesses who are at the forefront of the debate over free speech on America’s campuses. There’s been a trend of intolerance against those voicing unpopular ideas or speech deemed disagreeable or offensive by some students and faculty at colleges and universities. This is occurring across the ideological spectrum, and even at law schools, even at law schools, where students should be taught to engage in a civil way with each other’s viewpoints. This past March, at Lewis & Clark Law School and at The City University of New York Law School, protests disrupted. Speakers who were invited to speak at Lewis & Clark, a member of the school’s administration was present, reportedly the Dean for diversity, but they stood by and did nothing, allowing a heckler’s veto to silence an invited speaker instead of encourage students to debate ideas that they disagreed with. In another instance, administrators at a community college forced an 8-year Navy veteran to stop distributing—and get this— pocket-sized U.S. Constitutions. Professor Raskin, we wouldn’t want students reading the Con- stitution, would we? Because he hadn’t received a permit to distribute preapproved material. So the very document that allows us to enjoy this great Nation wasn’t deemed preapproved material, this individual took an oath to defend this document and the ideals he embodies, but he wasn’t allowed to hand out free copies of the

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00010 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 5 United States Constitution. Because his students stood up for the most basic rights, the school, thankfully, changed their unconstitutional policy. At our first hearing on this subject, we heard from civil rights experts, administrators, and speakers who had been shouted down and threatened, disinvited because of their beliefs. We even heard from a comedian. Mr. Krishnamoorthi, I think he made a little joke about the length of the letters in your name. Today, our panel consists of witnesses who were not only shouted down, but physically assaulted, in the case of Dr.Stanger, and ousted from their teaching jobs, in the case of Dr. Weinstein. Let’s be clear. College is a place for young minds to be intellectually stimulated and challenged with new ideas and ways of thinking. Unfortunately, at many institutions, students and faculty are forced into self-censorship out of fear of triggering, violating a safe space, creating a microaggression or being targeted by a biased-response team. At one university when reporting bias, and I quote, ‘‘the most important indication of bias is your own feelings. Real objective standard there, Mr. Raskin, right? To borrow a phrase from—facts don’t care about your feelings. And as Justice Brandeistold us, ‘‘the answer to bad speech is more speech.’’ Restricting speech that does not conform to popular opinion, imperils the politically weakest among us from speaking at all, which is exactly what the First Amendment is designed to prevent. When students go back to school in the fall, are these institutions going to be more open to civil debate? We certainly hope so. And that is the focus of our hearing today. And so, again, thank you to our witnesses for appearing with us today, and I look forward to hearing your testimony in just a few minutes, but first we have the gentleman, the right fine gentleman with the long name, who is the ranking member who gets his opening statement. And then we’ll get to our witnesses. Mr. KRISHNAMOORTHI. I welcome comedic speech at this hearing. And I hope there will be some to lighten things up. I should just tell you, in that hearing I introduced myself as had Raja Krishnamoorthi and somebody said Roger Christian Murphy, very nice to meet you. I didn’t know the Irish made it to India. Well, thank you, Mr. Chairman, and thank you, ranking members, for allowing me just a couple minutes of time to address this very important topic. Our First Amendment protections are among our most cherished rights, and I think everybody in this room knows that. Free speech is a cornerstone of the Nation’s commitment to ensuring that we are able to have a robust and wide-open discussion. The Supreme Court has rightly held that practically any peaceably expressed idea cannot be suppressed by law, no matter how unpopular, repugnant, crude, or ill-informed it may be. While certain restrictions on the time, place, and manner of speech can exist, any law that seeks to limit the substance of speech should be ap- proached with great caution. Restrictions may exist on how, when, and where people say things, but the government fundamentally should not restrict what

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 6 people say. However, free speech does not mean the right to be free from criticism. As I have a right to state my view, you have a right to disagree, vocally, passionately and peaceably. And humorously. There is a clear and present danger facing colleges and universities across the Nation making peaceful disagreement difficult; namely, an increase in white supremacist hate groups on campuses and the targeting and harassing of students because of their religion, race, and sexual identity. This is not about culture wars or liberal versus conservative. This is about our values as a society making our children safe to engage in civil discourse, to use their First Amendment rights free from coercion. Today, white supremacists groups and other hate groups are a significant challenge for the exercise of First Amend- ment rights on college campuses. According to the Anti-Defamation League, white supremacists are engaged in an unprecedented set of outreach efforts on Amer- ican college campuses. They are pursuing a deliberate strategy of recruiting college students. They are also increasing the incidents of hate speech on campuses, targeting and threatening students for their race, religion, and sexual identity. From the fall of 2016 to the fall of 2017, the ADL reported that there was a 258 percent increase in white supremacists propaganda efforts, such as the dissemination of racist flyers and stick- ers on college campuses. Along with this rise came an increased number of incidents of Anti-Semitic, racist, and other hateful expressions that target and harass students on college campuses. The Southern Poverty Law Center reported that in the first 10 days, the first 10 days after the 2016 presidential election, there were 140 incidents of hate-biased attacks on university campuses. Coinciding with these unprecedented increases in hateful expression, a significant decrease in free speech suppression on college campuses is also happening. The Foundation For Individual Rights and Education reports that in 2017, there were just 35 disinvitation attempts, of which 19 were successful. This number is down from 43 in 2016. This organization also reported that the number of universities having official quote, un- quote, ‘‘speech codes’’ has been dropping each year and is currently at an all-time low. As we examine the issue of free speech today on college campuses, let’s keep the focus on addressing the real source of danger to the expression of freedom of speech, namely, an alarming increase in white supremacist and hate group activity. Thank you, Mr. Chairman. Mr. JORDAN. I thank the gentleman. I would ask unanimous con- sent that Ms. Stefanik, Ms. Handel,Mr. Estes, Mr. Brat, and Mr. Perry be able to participate in today’s hearing. Without objection, so ordered. We now turn to our distinguished witnesses. Mr. Langhofer, Mr. Tyson Langhofer is Senior Counsel and Di- rector for Center for Academic Freedom at the Alliance Defense Fund. Mr. Langhofer, we appreciate you being here.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 7 Dr. Bret Weinstein, Professor In-exile, and I believe that’s an actual title you have. Is that right, Mr.—— Mr. WEINSTEIN. Yes. Mr. JORDAN. Yeah. Professor In-exile, Evergreen State College from Washington is with us. We appreciate you being here. Dr. Allison Stanger, Professor of International Politics and Eco- nomics at Middlebury College in Vermont is with us. And Dr. Shaun Harper, Professor of Education and Business at the Univer- sity of Southern California. And, of course, Dr. Robert George McCormick, Professor of Jurisprudence and Director of the James Madison Program in American Ideals and Institutions at Princeton University, of course, in New Jersey, is with us. Welcome to all. And pursuant to committee rules, I ask that you all stand. We swear everyone in here. So if you would please stand and raise your right. Do you solemnly swear or affirm the testimony you’re about to give is the truth, the whole truth, and nothing but the truth, so help you God? Let the record show that everyone, each witness answered in the affirmative. Mr. Langhofer, we’re going to go right down the list. Actually, we’re going to start with Dr.Stanger, then we’re going to go right down the list. And we’ll start with Dr. Stanger first, and then move right down there. So, Ms. Stanger, you’re recognized.

WITNESS STATEMENTS

STATEMENT OF ALLISON STANGER Ms. STANGER. Well, thank you very much. You’ve invited me to testify about my own personal experiences with free speech issues on college campuses and what I have learned from them. It is an honor and privilege to share some thoughts with you here today, and I look forward to answering your questions. Many see a leftward ideological tilt among university professors and programs as compared with the general population. What is undeniably true that most American professors do not identify as conservative, I would argue that the academy is not tilting leftward. Rather, it is defining college community in opposition to the life of the mind. This is no trivial reorientation. Nothing less than free inquiry and the civil discourse upon which American constitutional democracy depends is at stake. I think this is a situation that can be righted and it should be up to universities to do that, but we can talk about that. So what can be done? I think calls for viewpoint diversity will not entirely address the problem, because they simply further politicize a realm that should make every effort to transcend politics and give every scholarly argument its proper due, regardless of its origins and regardless of what majority opinion might be. Balancing left and right that is a political agenda is of lesser importance than allowing reason, logic, and above all, empathy to reign supreme.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 8 The university must therefore stand against group think and campus illiberalism. It must take the lead in educating our students and the public on the dangerous consequences of believing you can build a better world through the dehumanization of other human beings. The voices of the marginalized must be amplified and heard, while remembering always that extremism, in all its permutations, is ultimately the denial of empathy’s importance for human flourishing. Perhaps most importantly, there is also a role for every American citizen to play, especially distinguished Members of Congress. Each and every one of us can model the behavior we would like to see from others. Our political discourse in this country would improve immeasurably if all of us would simply renounce lies and ad hominem attacks masquerading as arguments. And instead, call them out for what they actually are: threats to the civil discourse on which free inquiry, democracy, and the rule of law depend. Much is at stake in defending freedom of expression. Because democracy cannot function when loyalty trumps truth. In a 1974 interview, Hannah Arendt explained, ‘‘If everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer. And a people that no longer can believe anything cannot make up its mind. It is deprived not only of its capacity to act, but also of its capacity to think and to judge. And with such a people, you can then do what you please.’’ While breaking with our own tribe for the sake of the truth may be uncomfortable, we as Americans are indisputably free to do it. We owe it to ourselves and to our children who are watching us, to avoid taking the path of least resistance and instead, do what is right, both to defend truth and to defend the republic. Thank you. And I welcome your questions. [Prepared statement of Ms. Stanger follows:]

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Prepared Testimony and Statement for the Record of

Allison Stanger Russell Leng '60 Professor oflnternational Politics and Economics Middlebury College

At the Hearing on "Challenges to Freedom of Speech on College Campuses, Part II"

Before the House Committee on Oversight and Government Reform May 22,2018

You have invited me to testify about my own personal experiences with free speech issues on college campuses and what I have learned from them. It is an honor and a privilege to share some thoughts with you here today.

Many see a leftward ideological tilt among university professors and programs, as compared with the general population. While it is undeniably true that the overwhelming majority of American professors does not identify as conservative, the academy is not tilting leftward. Rather, it is defining college community in opposition to the life of the mind. This is no trivial reorientation. Nothing less than free inquiry and the civil discourse upon which American constitutional democracy depends is at stake.

How Tribalism Trumps Truth

As many of you I believe know, several of my students asked me to moderate a talk last year with the libertarian scholar Charles Murray. Dr. Murray was drowned out by shouting students who never let him speak, we were forced to retreat to another location to live stream our conversation, and he and I were intimidated and physically assaulted while trying to leave campus. 1

Student protestors objected to Charles Murray being invited into "their home." Their choice of words was revealing. Having a home is important, because home is a safe space that energizes and empowers. Having a home and feeling at home are something the privileged and powerful are likely to take for granted and the dominated envy and crave. Everybody needs a home, yet that is precisely what was taken from me.

The dialogue on campus that emerged thereafter was one that surprised me greatly. Everyone condemned the violence, but few saw a connection between the shutdown efforts and what happened to me. The inconvenient truth of my serious injuries was instead portrayed as unfortunate collateral damage unconnected to the censorship of speech--essentially, my

1 For further details. see https:l/www.nytimes.com/20 17/03113/opinionlunderstanding-the-angry-mob-that-gave-me a-concussion.html; https:l/www.nytimes.com/20 17104/03/educationledlife/middlebury-divided-campus-charles murray-free-speech.html; and https://www.help.senate.gov/imo/medialdoc/Stanger.pdf

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whiplash and concussion were beside the point. Fifteen months later, I am still being treated for my injuries.

The ensuing debates on campus presented the choice as one of freedom of expression versus college community. To my mind, the community's values were a shared commitment to the life of the mind and the pursuit of truth. To some of the protestors, however, freedom of speech was a weapon designed to inflict harm on traumatized students and perpetuate white supremacy. They saw me as an extremist devoid of empathy who was rightfully combatted with extremism. In the weeks that followed, a majority of faculty viewed the dispute that had emerged as akin to a bad divorce, where there are two competing narratives with no common ground. They kept their heads down, finding it prudent not to take sides between what they perceived to be warring factions.

When you feel like a victim of injustice, and you witness colleagues in what was once your home avoiding conflict and ducking difficult questions, as we humans are prone to do, a lot of things that you never quite understood before begin to make sense. I had never previously understood how Thomas Jefferson could draft the Declaration oflndependence and simultaneously own slaves. Now I do. I had never previously understood how a man as brilliant as Martin Heidegger could join the Nazi Party. Now I do. When everyone around you is mindlessly repeating the same thing, evil becomes normalized through thoughtlessness fueled by self-interest. When people stop thinking for themselves, it is easier to treat other humans as a means to an alleged higher end, rather than as ends in themselves.

It is because human beings are instinctively tribal and prone to groupthink that freedom of speech is so important for civility, both in the polis and in the ivory tower. The simple fact that great minds like Jefferson could turn a blind eye to noxious racism needs to be owned if we are to confront inequality in contemporary America with requisite force. For that we need reason and free inquiry, however, not militant ideology. We need reason to combat the excesses of the extreme right and the extreme left. Brute force or fire-with-fire tactics only fan extremism's flames. We need free inquiry to expose and battle injustice. The academy must take the lead in educating our students and the public on the dangerous consequences of believing you can build a better world through the dehumanization of other human beings.

Much is at stake in defending freedom of expression in our universities, because democracy cannot function when ideology trumps truth. In a 1974 interview, Hannah Arendt explained, "If everybody always lies to you, the consequence is not that you believe the lies, but rather that nobody believes anything any longer ... And a people that no longer can believe anything cannot make up its mind. It is deprived not only of its capacity to act but also of its capacity to think and to judge. And with such a people you can then do what you please. " 2

With an eye to the future, in a big data world, where computer algorithms function like ideology, thinking for yourself will become only all the more important for defending individuality and civil liberties. Confronted with group-based statistical patterns, the challenge will be to continue to remember the individual. Just as human beings should not be reduced to algorithms, partisan convictions should not be permitted to censor the ideas of others.

1 http://www.nybooks.com/articles/1978/1 0/26/hannah-arendt-from-an-interview/.

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What is to be Done?

While understandable, calls for viewpoint diversity in the academy will not entirely address the problem, because they simply further politicize a realm that should make every effort to transcend politics and give every scholarly argument its proper due, regardless of its origins and regardless of what majority opinion might be. Balancing left and right (a political agenda) is thus of lesser importance than allowing reason and logic to reign supreme.

The university must insist on the unfettered pursuit of truth or lose its raison d' etre. College presidents must stand firm on the importance of freedom of expression for the life of the mind and insist that their institutions uphold the ground rules for the pursuit of truth. Here it is important to remember that young student radicals are not likely to be compromisers by definition, and because they are still developing, they may not know as much about how the world operates as they think they do (that is why they are getting an education). College administrators must therefore have the strength of character to listen empathetically, but also to safeguard the evidence-based world when activists challenge the university's core mission, even when students of color, who have earned the right to be angry, believe they are defending their very humanity.

Department Chairs would do well to recall that the university should be a place where one department may find something worthwhile that another despises. The aim should not be the creation ofuniversal codes of acceptable speech but instead the freedom for individuals and departments to exchange ideas without being ostracized by others. Embracing interdisciplinarity and actively seeking to engage with the views of those with whom we might disagree are also important rules of the road.

Professors must model the behavior we want to see from our students, which means that we must all strive to be better listeners who are also open to learning ourselves. We must learn from the emotions we encounter, while at the same time affirming that liberal education ends when emotion is valued more than reason. Saying that something is true simply because it's how people feel is what allows community to be defined in opposition to free inquiry. Our celebration of the life of the mind, however, should not blind us to the work that still needs to be done in this country, as James Baldwin wrote, to "end the racial nightmare, and achieve our country, and change the history of the world."3

With respect to our students, we must equip them with the tools to fight il\iustice and unfairness in all its manifestations. We must deliver an education that allows them to realize that reason and logic, so often used against them, can in reality be weapons of the weak against the powerful. This is not to deny the place of emotion in education, which can be harnessed for improvement of both ourselves and the university. The voices of the marginalized must be amplified and heard, while remembering, always, that extremism in all its permutations is ultimately the denial of empathy's importance for human flourishing.

3 James Baldwin, The Fire Next Time in James Baldwin, Collected Essays (New York: Penguin Random House, 1998), pp. 346-347.

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Finally, there is a role for every American citizen to play, especially distinguished members of Congress. Each and every one of us can model the behavior we would like to see from others. Our political discourse would improve immeasurably if all of us would simply renounce lies and ad hominem attacks masquerading as arguments and instead call them out for what they are: threats to the civil discourse on which free inquiry, democracy, and the rule of law depend.

On this simple truth, reasonable Democrats and Republicans alike can agree. One need look no further for evidence than former Secretary of State Rex Tillerson's commencement speech at the Virginia Military Institute last week. "If our leaders seek to conceal the truth, or we as people become accepting of alternative realities that are no longer grounded in facts, then we as American citizens are on a pathway to relinquishing our freedom," Tillerson said. "This is the life of nondemocratic societies, comprised of people who are not free to seek the truth... A responsibility of every American citizen to each other is to preserve and protect our freedom by recognizing what truth is and is not, what a fact is and is not. We begin by holding ourselves accountable to truthfulness and demand that our pursuit of America's future be fact-based."4

While breaking with our own tribe for the sake ofthe truth may be uncomfortable, we as Americans are indisputably free to do it. We owe it to ourselves and to our children, who are watching us, to avoid taking the path of least resistance and instead do what is right, both to defend truth and the Republic.

4 http://www.vmi.edu/cadet-life/life-on-post/coms-eventsllivestream/. Tillerson's speech begins at 53:29.

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Mr. JORDAN. Thank you, Doctor. Mr. Langhofer, you’re recognized.

STATEMENT OF TYSON LANGHOFER Mr. LANGHOFER. Good afternoon, Mr. Chairman, and members of the committee. Thank you for the opportunity to testify before you today. My name is Tyson Langhofer, and I’m senior counsel with Alliance Defending Freedom, and the director of the Center for Academic Freedom, which is dedicated to protecting freedom of speech and association for students and faculty at public universities, so that everyone can freely participate in the marketplace of ideas without fear of government censorship. Over the last 12 years, ADF has secured almost 400 victories for free speech on America’s college campuses. While these victories show that the law is on the side of free speech, the fact that there are this many infringements taking place raises grave concerns. In the United States, the only permit a student should need to speak freely on public university campus is the First Amendment. But unfortunately, many taxpayer-funded public universities enforce policies that suppress and stifle the marketplace of ideas that campuses were intended to be, and it created a college culture that fears rather than respects differences of opinion. Ironically, colleges are some of the most diverse places in the entire country, spending millions of dollars every year on all kinds of diversity initiatives. Yet, public universities are some of the most ideologically intolerant places in the entire country. Why is that? There exists a lack of intellectual diversity, respect for diversity of thought. Uniformity of thought breeds intolerance, especially when enforced by government mandate. Unfortunately, most of today’s colleges have chosen to regulate rather than to respect freedom and authentic diversity. They do so by enacting an array of policies that infringe upon students’ First Amendment rights. I will briefly discuss three of the most prevalent. The first categories of speech zone policy. A speech zone is a policy that prohibits students from speaking or distributing literature anywhere in the open outdoor areas of campus, except for a very small speech zone. For example, we recently represented Michelle Gregory, a student at Kellogg Community College in Michigan. Michele was in the process of forming a Young Americans for Liberty Student Group. Michelle and three other YAL supporters were on a large open walkway on campus handing out pocket-sized copies of the U.S. Constitution. They were not blocking access to buildings or pedestrian traffic, and were not interfering with any activities. Yet college administrators and campus security arrested, jailed, and charged them with criminal trespass, simply for speaking outside the speech zones. Thankfully, after ADF filed a lawsuit, the charges were dropped, and the school eventually changed its policy. But students literally spent the evening in jail for asking their fellow students if they would like to learn more about freedom and the U.S. Constitution.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 14 The second category of unconstitutional policy is speech codes. A speech code is a policy or regulation that prohibits or punishes a certain types of speech that colleges view as demeaning, uncivil, derogatory, or discriminatory. For example, ADF represents Chike Uzuegbunam, a student at Georgia Gwinnett College. Chike was in an outdoor area of campus talking with other students about his faith. School officials ordered him to leave because they said he had violated the college’s speech code, which forbids any expression that, quote, ‘‘disturbs the peace and/or comfort of persons.’’ After ADF filed a lawsuit, the school modified this portion of its policy, but this case is still ongoing. The third category of policies involve how schools allocate student activity fees. A student activity fee is a mandatory fee that most colleges charge in addition to tuition to fund the expressive activities of student organizations. Unfortunately, many universities’ student activity fee policies are allocated in an unconstitutional viewpoint discriminatory manner. For example, last month, we filed a lawsuit against Kennesaw State University on behalf of Young Americans For Freedom. The college gives university officials sole discretion to rank student organizations subjectively into one of four classifications that function as a sort of caste system for preferential treatment, including which areas of campus that they can use, and the amount of funding for activities. These are just a few examples demonstrating that today’s colleges are failing to educate their students about rights afforded by the First Amendment and about their duties as citizens of this great country. Our First Amendment demands better. Our colleges can do better. Our students deserve better. In an essay on the purpose of education, Dr.Martin Luther King said, to save man from the mo- rass of propaganda, in my opinion, is one of the chief aims of education. Education must enable one to sift and weigh evidence, to discern the true from the false, the real from the unreal, and the facts from the fiction. Dr.King closed with this warning: ‘‘If we are not careful, our colleges will produce a group of close-minded unscientific, illogical propagandists consumed with immoral acts. Be careful, brethren. Becareful, teachers.’’ I commend the members of the committee for recognizing the importance of protecting college students’ First Amendment rights on campus. And I am happy to answer any questions. [Prepared statement of Mr. Langhofer follows:]

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ALLlANCE DEFENDING FREEDOM fOR FAITH FOR JUSTICE

COMMENT FOR SUBMISSION TO THE HOUSE SUBCOMMITTEE ON HEAL THCARE, BENEFITS, AND ADMINISTRATIVE RULES AND THE HOUSE SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS FOR THE COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM REGARDING THE MAY 22, 2018 HEARING ENTITLED: Challenges to the Freedom of Speech on College Campuses: Part II

Tyson C. Langhofer, Senior Counsel Director, Center for Academic Freedom

Caleb Dalton, Legal Counsel Center for Academic Freedom

Alliance Defending Freedom

May 22,2018

0 F1rst Streat NW Suite 600, Washington D.C. 20001 Phone 800.835.5233 Fa-,:: 202.347 3622 AllianceDetelldingFreedam.org

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Dear Chairman Jordan, Chairman Palmer, and Members of the Committee:

The importance of a robust enforcement of First Amendment protections on our nation's campuses is difficult to overstate. The United States Supreme Court has called public universities "peculiarly the 'marketplace of ideas.'" 1 Without this marketplace of ideas, "our civilization will stagnate and die." 2 As the marketplace's custodians, public universities should be places where young adults learn to exercise the First Amendment rights necessary to participate in our system of government and to tolerate others' exercise of those same rights. Indeed, teaching students about our constitutional system and their role in it as citizens is a necessary part of education, and students learn as much or more from universities' policies and practices of protecting or restricting expression and association as they do from the classroom.

We can only protect the First Amendment if we understand it. Congress and the American people have every right to expect that our public universities will advance, not hinder, that understanding. But on this score our public universities are simply failing. Only seventeen percent of Americans can even identifY the free exercise of religion as a right protected by the First Amendment. 3 Thirty-nine percent of all Americans and twenty-seven percent of college graduates cannot identifY any of the protections of the First Amendment. 4 Even more troubling, nearly one in five students agree that using violence to silence speech that a student deems "offensive and hurtful" is "acceptable."5 Putting these beliefs into action, many speakers (disproportionately conservative) on campuses in the last year have been met with violence and administrative roadblocks to prevent their viewpoints being heard in the University marketplace.

The status quo is unsustainable and Alliance Defending Freedom (ADF) is dedicated to changing it to advance the cause of freedom. By way of introduction, ADF is an alliance-building, non-profit legal organization that advocates for the right of people

1 Healyv.James,408U.S.169, 180(1972). 2 Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion ofC.J. Warren). 3 The Newseum Institute, The 2016 State ofthe First Amendment, available at http://www.newseuminstitute.org/wp contentluploads/20 16/06/F AC_SOFA 16_report. pdf (last visited May 18, 20 18). 4 /d 5 John Villasenor, Views Among College Students Regarding the First Amendment, Brookings Institution, Sept. 18, 2017, available at https://www.brookings.edu/bloglfixgov/20 17/09/18/views-among-college-students-regarding-the first-amendment-results-from-a-new-survey/.

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to live out their faith freely. 6 ADF's Center for Academic Freedom7 is committed to protecting freedom of speech and association for students and faculty so that everyone can freely participate in the marketplace of ideas without fear of censorship, and has represented clients in over 385 victories for First Amendment matters on public university campuses. 8

Unfortunately, a significant majority of public universities are restricting the First Amendment rights of speech and association of their students and faculty through a vast array of onerous policies and restrictions that not only violate students' rights now, but teach them false lessons about how they should think about their own and others' constitutional rights once their college days are done. This letter addresses recent instances where ADF's clients' First Amendment rights have been violated at public post-secondary institutions, and it identifies four subject-matter areas where these institutions routinely infringe on speech and associational rights.

Most Public Universities' Written Policies and Unwritten Practices Restrict Free Expression and Association on Campus, Teaching Students that Government May Restrict the Expression of Unpopular Viewpoints

Rather than teaching their students about the robust protections of the First Amendment and the value of hearing other opinions in the "marketplace of ideas," the vast majority of public universities maintain policies or regular practices that violate constitutional rights. Universities routinely, ( 1) impose unconstitutional speech codes, (2) create restrictive speech zones, (3) require advance approval for student expression, ( 4) authorize "bias response teams" to chill student speech through perpetual investigation, ( 5) charge mandatory student activity fees that require students to fund others' ideological expression and discriminate against disfavored views in allocating those funds, and

6 Alliance Defending Freedom has achieved successful results for its clients before the United States Supreme Court, including six victories before the highest court in the last six years. See e.g., Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (striking down state burdens on ADF's client's free-exercise rights); Zubik v. Burwell, 136 S. Ct. 1557 (2016) (per curium) (successful result for religious colleges' free exercise rights); Reed v. Town ofGilbert, 135 S. Ct. 2218 (2015) (unanimously upholding ADF's client's free-speech rights); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2759 (2014) (striking down federal burdens on ADF's client's free-exercise rights); Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) (upholding a legislative prayer policy promulgated by a town represented by ADF); Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125 (2011) (upholding a state's tuition tax credit program defended by a faith-based tuition organization represented by ADF). 7 ADF Center for Academic Freedom, www.CenterforAcademicFreedom.org (last visited May 17, 2018). 8 ADF Center for Academic Freedom Cases, http://centerforacademicfreedom.org/cases/ (last visited May 17, 2018).

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(6) impose security fees that authorize heckler's vetoes, raising the price for speakers under the guise that they are "controversial."

In the last decade, ADF has assisted hundreds of students and student groups of varying religious and political beliefs facing violations of their First Amendment rights on campus. While the Center for Academic Freedom has achieved a 100% success rate in challenging the all-too-common "speech zones" listed below, universities nevertheless persist in applying such unconstitutional policies to our nation's students every day. The following select incidents encountered by ADF clients in 2016 and 2017 alone illustrate the breadth of the constitutional crisis students face on campus.

A Young Americans for Liberty member at Michigan's Kellogg Community College was arrested for distributing copies of the Constitution on her campus. 9 Administrators explained that students could only speak freely by reserving a table in the student union and applying for a permit. The rest of the school's campus was off-limits for student speech. Video of the arrest is publicly available online. 10

At California State University-Los Angeles, faculty members actually linked arms to prevent students from entering an auditorium to hear a speech from nationally known speaker Ben Shapiro on-ironically-freedom of speech, hosted by a Young Americans for Freedom student group. 11 The President of the University personally tried to prevent these students from hosting their free speech event, imposing burdensome security fees, trying to cancel the event, and-when protestors attempted to stop the event-ordering the police to stand down, thus permitting faculty members and others to block students from entering and engage in physical violence. Video of, and commentary regarding, this incident is publicly available online. 12

At Georgia Gwinnett College in suburban Atlanta, Chike Uzuegbunam sought to peacefully discuss his faith with other students on his campus. The school ordered him not to speak outside of a tiny speech zone, representing .0015% ofthe campus,

9 Press Release, ADFMedia, Student Club Supporters Arrested for Handing out US Constitution at Michigan College (Jan. 18, 2017), http://www.adfinedia.org/News/PRDetaiV10155. 10 Video: Students Arrested for Passing Out US Constitutions on Kellogg Community College Campus, Jan. 18, 2017, https://www.youtube.com/watch?y=5QnluRetVb4. " Young America's Foundation v. Covino, http://www.adfinedia.org/News/PRDetail/10117 (last visited May 18, 2018). 12 Video: ADF, YAF, Ben Shapiro File Free Speech Suit Against CSULA, May 18, 2016, https://www.youtube.com/watch?v~Hwr5TvGrMiU.

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and even then only after he applied for permission. But after he had satisfied all of the school's demands and secured the permit to speak in this ludicrously small speech zone, an officer told him that he could no longer speak even there. Because others objected, his discussion of the Gospel was be deemed "disorderly conduct" and a "disturb[anceJ [of] the peace and/or comfort ofpersons." 13

Despite billing itself as America's most diverse campus, Queens College in New York City rejected a Students for Life group's application for registered student organization status, excluding the group from meeting space, the opportunity to bring in speakers, funding, and all of the benefits that allow the nearly one hundred other student organizations at Queens to participate in the marketplace of ideas. 14

At Fresno State, a Students for Life Club received permission to chalk positive, life affirming messages on the sidewalks leading to the university's library. Despite being informed that the group had permission, a professor recruited at least seven students from his 8:00 a.m. class to erase and deface the pro-life chalk messages. When he was reminded that the club was acting with full permission, the professor walked over to one of the pro-life messages and began erasing it himself, claiming that he was exercising his free speech rights. In addition, he erroneously proclaimed, "College campuses are not free speech areas." 15 Around the same time, in Pennsylvania, Kutztown University employees erased pro-life messages from the sidewalks despite the students' compliance with the Universities chalking policies that permitted the students to express their messages. 16

These recent cases in Michigan, California, Georgia, Pennsylvania, and New York, only represent a fraction of speech-restriction incidents on public university campuses. In just the last year, AD F has also represented students in federal lawsuits against universities restricting their rights in North Carolina, 17 Wisconsin, 18 and

13 Press Release, ADFMedia , "Georgia college sued for censoring student speech, restricting it to .0015% of campus," (Dec. 20, 2016), http://www.adfmedia.org/News/PRDetaii/?CID~92219. 14 Press Release, ADFMedia, NYC College Relegates Pro-Life Student Group to Second-Class Status (Jan. 25, 2017), http://www.adfmedia.org/News/PRDetail/1 0145. 15 Press Release, ADFMedia, Fresno State U. Professor Sued for Erasing, Censoring Students' Pro-life Sidewalk Chalk Expression (May II, 2017), http:!/www.adfmedia.org/News/PRDetail!l 0264. 16 Press Release, ADFMedia, Pennsylvania University Scrubs Chalked Pro-life Messages from Sidewalks (March 13, 20 17), http://www.adfmedia.org/News/PRDetail/l 0196. 17 Press Release, ADFMedia, NC State Revises Speech Policy After Losing Court Battle With Student Group (July 19, 2016), http://www.adfmedia.org/News/PRDetail/9975. "Press Release, ADFMedia, UW-Eau Claire to Religious Students: 'Your Service Doesn't Count' (Nov. 10, 2016), http://www.adfmedia.org/News!PRDetail/?CID~92002.

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Iowa. 19 These violations of the First Amendment are not limited to red or blue states, or to any region of the country. Nor are these isolated events. ADF attorneys regularly advise students who experience similar discrimination but are afraid to publicly challenge the colleges that are supposed to be the protectors of freedom in the marketplace.

College students are learning by example how government officials-university administrators-value the First Amendment. Today's students are tomorrow's Members of Congress, judges, teachers, and voters. Our university campuses are where the next generation should be learning how the Constitution works, what rights it protects, and why they are worth defending-even when one does not always agree with the views or the beliefs of those that it protects. But instead, students are learning by example from public university administrators that the First Amendment means what government officials want it to mean-and that the full exercise of the First Amendment is too dangerous to permit.

We highlight these examples to underscore the significance of this growing cultural and constitutional crisis facing our university students. This crisis will impact the future of our nation's commitment to the First Amendment freedoms that ensure the American experiment will continue. These campuses are heavily funded by taxpayer dollars. For example, roughly half of the Department of Education's budget, allocated by Congress, goes to higher education programs, and this does not even include student loans. 2°Congress has a fiscal responsibility to ensure that these tens of billions of dollars in federal taxpayer funds are being used in a way that advances, not discourages, respect for the First Amendment rights of all Americans.

Four Common University Policies that Restrict Free Expression or Association

1. "Speech Zones"

Many universities prohibit "free speech" activities (whether just talking with fellow students, gathering signatures, holding signs, or handing out free copies of the Constitution) except on small designated areas of campus, and often even then require prior approval. This is the case at Georgia Gwinnett College in suburban Atlanta (referenced above) where Mr. Uzuegbunam was told he could only tell

19 Press Release, ADFMedia, Iowa State Requiring Students to Give up Free Speech to Graduate (Oct. 17, 2016), http://www.adfmedia.org/News/PRDetail/1 0096. 20 See Issue Brief, Federal and State Funding of Higher Education, PewTrusts.org (June 11, 2015), http://www. pewtrusts.org/enlresearch-and-analysis/issue-briefs/20 15/06/federal-and-state-funding-of-higher education.

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others about his Christian faith on .0015% of the campus with prior permission, at Kellogg Community College where individuals were arrested for passing out the Constitution outside the "speech zones," and at Southern Illinois University where expression was limited to a speech zone that is only .0013% of the campus. 21

Often, the speech police do not enforce these restrictions equally against all expression. For example, ADF's clients at Grand Valley State University in Michigan attempted to hold an informal event celebrating free speech by having students write on a "free speech ball" in a large open area on campus. 22 They were told they would be arrested if they did not move to the small zone that excludes 99.7% of the campus. On the other hand, a large crowd of students was allowed to hold signs and march around campus outside of the two small speech zones (including in buildings) as they protested the election of Donald Trump. The University agreed to change its policies after ADF represented the students in a federal lawsuit challenging the speech zones, 23 but such inequitable application of policies to prohibit some viewpoints and permit others is commonplace on campuses-especially those with restrictive "speech zones."

2. Vague harassment and other speech policies

Many schools have adopted vague and ambiguous harassment and speech policies that chill student expression. When a policy defines harassment as words which "offend" or warn students that "intolerance will not be tolerated," many students are reasonably concerned about expressing unpopular opinions for fear of being accused of"harassment." Iowa State University even stated in its policies that "engaging in First Amendment protected speech activities" may be punished as "harassment."24 This mentality that administrators' views of offensive speech can override the First Amendment not only chills students' speech on these campuses, but it also teaches the nation's future leaders that the government is the ultimate arbiter of what opinions are acceptable to hold. Thus, the marketplace of ideas turns into the intellectual vacuum of intolerance--breeding fear instead of freedom.

21 Press Release, ADFMedia, Student Group Sues STU-Edwardsville for Restricting Speech to Less than .0013% of Campus (Oct. 25, 2017), http://www.adfinedia.org/News/PRDetail/10404. 22 Press Release, ADFMedia, Take Your 'Free Speech' Beach Ball and Go Home, Michigan University Tells Students (Dec. 8, 2016), http://www.adfinedia.org/News/PRDetail/10124. 23 Press Release, ADFMedia, Grand Valley State University Revises Expressive Activity Policy (March 1, 2017), http://www.adfmedia.org/News/PRDetail/l 0181. 24 Press Release, ADFMedia,lowa State Requiring Students to Give up Free Speech to Graduate (Oct. 17, 2016), http://www.adfmedia.org/News/PRDetail/10096.

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3. Granting unlimited power to administrators

Another way in which the universities engage in viewpoint discrimination is by granting unbridled discretion to an administrator to choose when a burden on speech applies or a permit will be approved. These open doors to discrimination may be found in policies requiring advance review ofliterature before it may be distributed, imposing security fees on speech where an administrator deems the speaker "controversial," or authorizing funding for student organizations through a process that permits discrimination in favor of some views and against others. The Supreme Court held in Forsyth County, Georgia v. Nationalist Movement that "[t]he First Amendment prohibits the vesting of such unbridled discretion" to discriminate between viewpoints "in a government official."25 According to the Court, "such discretion has the potential for becoming a means of suppressing a particular point of view." 26 Because the "decision [of] how much to charge for police protection ... or even whether to charge at all" is "left to the whim of the administrator," without any consideration of"objective factors" or any requirement for "explanation," such policies are unconstitutional. 27

Such policies, however, are commonplace on our nation's campuses. Just this spring the University of Southern Maine attempted to charge students approximately $450 (a substantial amount for a student group) in "security fees" when they invited a sitting state legislator to speak on immigration policy. 28 The University President called the state legislator "offensive and repulsive" and "distasteful and nasty," and encouraged the student body to "peacefully" protest him. He then told the press that he would charge the student group for security because their speaker's viewpoints were controversial and could lead to "a highly charged situation."29 But the Supreme Court held that "[ s ]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob"30-much less one stirred up by the university president. Such fees literally transform "free speech" into "expensive speech."

25 Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133 (1992). 26 ld. at 130 (quotation marks and citation omitted); see also Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 10\\, \042 (9th Cir. 2009) (noting that unbridled discretion to impose security fees indicated possible content-based discrimination). 27 Forsyth Cty., 505 U.S. at 133. 28 Press Release, ADFMedia, U. of Southern Maine Agrees Not to Charge Conservative Student Group $450 for 'Free' Speech (Feb. 20, 2017), http://www.adfrnedia.org/News/PRDetail/92875?search~l. 29 !d. 3° Forsyth Cty., 505 U.S. at 134-35.

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At other schools, such as Queens College, committees are granted similar unbridled discretion to decide what student groups are worthy of even being "recognized" at all. This process grants them the ability to decide what viewpoints may bring speakers to campus, post on the bulletin boards, and use classrooms for meetings. In this case, the Students for Life group was denied recognition, with no ability to appeal, while other groups were able to use campus facilities to spread competing viewpoints. 31 And at Queens College and many other universities, the student government is authorized to distribute millions in mandatory student activity fees to student groups with few if any limits on the discretion of these decision-makers. At Queens College, for example, each student pays over $1,200 in student activity fees over a four year period, substantially adding to their debt burden. And this injury is compounded by the university distributing those funds to groups for ideological expression they oppose, excluding some groups whose members pay these fees from student activity funding altogether, and allocating these funds to groups in a manner that favors some viewpoints over others.

Granting administrators unbridled discretion to restrict viewpoints at-will not only violates constitutional principles, it educates the next generation with the proposition that government officials are a law unto themselves, making the rules as they go along and favoring those they wish to favor.

4. Limiting equal access and free association

Every university seeks to eliminate invidious discrimination, enacting non discrimination policies that forbid discrimination based on irrelevant characteristics like race, sex, religion, or political views. But some schools turn these policies on their head, using these rules meant to protect religious students, for example, to actually forbid religious or political student groups from being officially recognized groups precisely because of their ideological distinctives. These policies, and "all comers" policies that take this prohibition on free association one step further by denying it to all groups, can result in absurd consequences for student groups that have unique and defining viewpoints like the College Democrats, Christian Legal Society, or even the Black Law Students Association. These policies are often misused to prohibit student clubs from choosing their leaders based on shared agreement with the very religious or political beliefs the group is formed to foster.

31 Press Release, ADFMedia, NYC College Relegates Pro-Life Student Group to Second-Class Status (Jan. 25, 2017), http://www.adfmedia.org/News/PRDetail/l 0145. After Students for Life filed a federal lawsuit challenging this policy the school agreed to recognize the group. Press Release, ADFMedia, NYC College Recognizes Pro-Life Club but Must Make Policy Changes (Jan. 30, 20 17), http:llwww.adfmedia.org/News/PRDetailll 0162.

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If applied uniformly, these policies do not just ostracize faith-based student organizations. For example, the dean of Hastings Law School agreed that his school's policy would force an organization like the Black Law Students Association to admit white supremacists as official voting members and leaders. Similar examples abound: a Muslim group must admit an atheist to its leadership ranks, a Democrat organization must allow a Republican to speak for it. And Christian student groups must not only allow an atheist Bible study leader, they would also be required to allow a believer in racial supremacy to do so-under the threat of sanction from their school if they do not relent.

No one supports discrimination against students on the basis of race, sex or other irrelevant reasons. But these policies can be especially harmful when colleges misuse them to prevent religious student groups from being religious. The right to speak means little if a group cannot control who speaks for it. The First Amendment protects everyone's right to associate around and advocate for shared political, social, or religious views and religious students should have that same right.

Conclusion

The state of the First Amendment on public universities and colleges is not well. The status quo at most institutions substantially restricts free speech and association, and teaches students that government censorship is the norm, not the exception. But, identifYing and acknowledging the problems are the first steps in remedying them so that the future of freedom is secured through a well-educated citizenry that appreciates the value of the First Amendment. We commend the Committee for its attention to this vital matter. Very truly yours, --s L~ ~· tJ.-~ Tys&ri' C. Lan'gl\ofer, Senior Counsel, . Caleb Dalton, Legal Counsel Director, Center for Academic Freedo Center for Academic Freedom Alliance Defending Freedom Alliance Defending Freedom

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Mr. JORDAN. Thank you, Mr. Langhofer, for that. I notice we have some young people with—lots of young people in the audience. Some have t-shirts on. We want to welcome the students who are here supporting First Amendment rights. And I also notice we have a nice young lady who happens to be the wife of our colleague, Mr. Meadows, who is in the audience, along with their son Blake. So welcome to Ms. Meadows, and Blake as well. We now go to Dr.Weinstein, Professor In-exile. We’re waiting for what that all means. Doctor, you’ve got 5 minutes.

STATEMENT OF BRET WEINSTEIN Mr. WEINSTEIN. Mr. Chairman, distinguished members of the committee, thank you for the invitation to address you. Tomorrow is the 1-year anniversary of the day 50 Evergreen students, students that I had never met, disrupted my class, accusing me of racism and demanding my resignation. I tried to reason with them. I felt no fear because I knew that whatever my failings might be, bigotry was not among them. At that moment, I felt sure I could reach them. I also felt a moral obligation to try. That racism squanders human potential and erodes human dignity offends me. I am also well-versed in the evolutionary logic that makes racism durable. I should have had no trouble establishing common ground. Their response surprised me. It would take months for me to fully understand what had happened. The protesters had no apparent interest in the very dialogue they seemed to invite. I was even more surprised by the protesters fervor in shouting down my actual students, some of whom had known me for years. The cruelty and the derision reserved for students of color who spoke in my defense was particularly troubling. If not discussion, what did they want? I was one of Evergreen’s most popular professors, I had Evergreen’s version of tenure. Did they really think they could force my resignation based on a meritless accusation? They did think that. And they were right. What I had not counted on was their alliance with Evergreen’s new president. Though the protesters openly humiliated him, the president of the college partnered with the mob in private, handing them concession after concession. We know this because the rioters filmed everything and proudly uploaded it. In one particularly telling video, the president calmly discusses with the leaders of the protest a demand to target stem faculty based on the empty assertion that scientists are particularly prone to bias. In that same video, the president speaks of his plan for those who resist the new order. Bring them in, train them, and if it doesn’t take, sanction them. He invites his partners to hold him to it. On the second day of unrest, the police chief called me. Rioters were stopping traffic and searching for someone car-to-car. The chief believed they were searching for me. She was worried for my safety and helpless to protect me as the president had ordered her force to stand down. What would have transpired if the rioters had

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 26 found me? I still don’t know, and I strongly suspect they don’t either. The protest in my class did not emerge out of the blue in May of 2017. One year earlier, I stood up and spoke in opposition to a dangerous proposal, one that threatened to establish a racial hier- archy amongst faculty. To those who have not faced something similar, this likely sounds hyperbolic, but one can now advance such policies and almost certainly succeed in passing them if they are properly draped in weaponized terminology. Equity, for example, has taken on special properties. If a person opposes an equity proposal, those advancing the proposal are se- cure in asserting that the person is motivated by opposition to racial equity itself. In other words, they are racist. My opposition to that first equity proposal was voiced to my colleagues with no students present. Demands for my resignation 1 year later in May of 2017 were not the result of organic student confusion, they were payback for violating a de facto code of faculty conduct, in which one’s right to speak is now dictated by adherence to an ascendent orthodoxy in which one’s race, gender, and sexual orientation are paramount. The students were on a mission. They were unwitting tools of a witting movement. This committee should take my tale as cautionary. Is there a free speech crisis on college campuses? One can certainly make that argument. But that portrayal is at least as misleading as it is inform- ative. What is occurring on college campuses is about power and control. Speech is impeded as a last resort, used when people or groups fail to self-censor in response to a threat of crippling stigma and the destruction of their capacity to earn. These tools are being used to unhook the values that bind us together as a Nation. Equal protection under the law, the presump- tion of innocence, a free marketplace of ideas, the concept that people should be judged by the content of their character rather than the color of their skin. Yes, even that core tenet of the civil rights movement is being dismantled. Am I alleging a conspiracy? No. What I have seen functions much more like a cult in which the purpose is only understood by the leaders and the rest have been seduced into a carefully architected fiction. Most of the people involved in this movement earnestly believe that they were acting nobly to end oppression. Only the leaders understand that the true goal is to turn the tables of oppression. Something is seriously and dangerously amiss. At this moment in history, the center does not hold. Partisan polarization and political corruption have rendered government ineffective, predatory, and often cruelly indifferent to the suffering of American citizens. Tribalism is the natural result. Evergreen’s public meltdown placed me in the eye of the storm and cast me into the spotlight. As a member of the intellectual dark web, I find myself at the vanguard of an emerging nonideolog- ical, nonpartisan movement. Along the Heterodox Academy and the Foundation for Individual Rights in Education, we are fighting to restore civility and respect

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 27 for competing perspectives. The electra is starved for honest debate and for the good governance that follows from it. My advice to this body is to put the Nation and its core values ahead of partisanship, and join us in the center to end this cultish power grab and return us to a forward path as a Nation. And I look forward to your questions. Mr. JORDAN. Thank you, Doctor. Dr.Harper.

STATEMENT OF SHAUN HARPER Mr. HARPER. Mr. Chairman and distinguished members, thank you for inviting me to contribute to this important conversation. In my prior role as a tenured professor at the University of Penn- sylvania, I founded an Interdisciplinary Research Center focused on race and education, workplace settings in our larger society. I relocated that Center with me to the University of Southern Cali- fornia last summer. I’ve spoken about the Center’s studies and my independent research at hundreds of colleges and universities across the United States. Surely, not every person on campuses at which I’ve spoken found my ideas and research findings agreeable. Notwithstanding, I’ve never had a speaking invitation withdrawn or had any group publicly protest a speech I delivered. It is important to acknowledge, however, that university administrators absolutely reserve the right to rescind speaking invitations they extend to me or anyone else. As a matter of fact, they typically make this clear in contractual agreements. These contracts are between institutions and their invited guests. I see no need for congressional intervention. For at least three reasons, tuition-paying college students have the right to protest people who bring hateful and poisonous messages to their communities. First, it is their campus. They pay to be there. Students have to learn, and in many cases, live there long after controversial speakers have come and gone. Second, student activity fee money is often used to fund expensive speakers, including those whom conservative student groups invite. Most people feel they have a say in something their money helps to finance. College students who pay tuition and fees are entitled to oppose spending thousands of their dollars on inflammatory divisive guest speakers. Third, and most importantly, college students have the constitutional right to protest. Their freedom of speech is just as valuable as the First Amendment rights of controversial speakers and people who support them. My Ph.D is in higher education. This has been my primary academic field of study for two decades. Having been elected by my peers to serve as national president of the Association for the Study of Higher Education, I feel a serious sense of responsibility to help preserve colleges and universities as marketplaces for contested ideas and sites of serious intellectual debate. I wholeheartedly agree that more speech, not less, advances the democratic purposes of American higher education.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 28 Sending millions of college-educated citizens into the workforce with little experience talking with people who disagree with them politically, is a significant failure of our Nation’s post-secondary institutions. Many campus complex pertaining to speech are inescapably racialized. Race is almost always at the center. Yet in conversations about free speech, rarely is race and racism ever named. My research shows that we send far too many college graduates into the workforce without a proper course of study on race, racism, and racial inequity. Leaders in most sectors of our economy have college degrees. And a disproportionately high number of them are white. White Ameri- cans comprise 94 percent of governors. 87 percent of the U.S. Sen- ate, 76 percent of the U.S. House of Representatives, 80 percent of K–12 teachers, 73 percent of college faculty members, and 83 percent of college and university presidents. Given these demographics, post secondary institutions act irresponsibly when we fail to create conditions that bring together whites and students of color to talk and learn across racial and political lines. This, as I see it, is a matter of institutional responsibility. According to the U.S. Department of Education, our country has 4,724 degree-granting post secondary institutions. Shouting down and rescinding invitations from highly compensated guest speakers is an issue plaguing only a tiny fraction of that 4,724 colleges and universities. College student activists are often accused of attempting to suppress their professor’s speech. In 2016, there were more than 1.4 million faculty members at U.S. colleges and universities. Even if 10,000 professors, which is a hypothetically high number, experienced aggressive encounters with speech suppressors on campus, that would be just 0.7 percent of the total faculty members na- tionwide. Most colleges and universities, including my own, host dozens, sometimes hundreds, of speakers each year who bring a wide range of perspectives to campus. The overwhelming majority of these speakers do not experience protests. But unlike the few who do, many of whom, by the way, are entertainers, not academicians. Unlike those, I would invite student protesters into a conversation with me about our ideological and factual disagreements. I would insist that those who support my viewpoints make space to respectfully listen to and talk with others who do not. It is not an entertainer’s financial or celebrity interest to patiently engage disagreeable students in productive conversations across partisan and racial lines. Again, I believe that this a challenge for college and university leaders. It is certainly not a matter for the Congress and the courts, in my opinion. I look forward to your questions. [Prepared statement of Mr. Harper follows:]

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CHALLENGES TO THE FREEDOM OF SPEECH ON COLLEGE CAMPUSES: PART II

Testimony provided to the United States House of Representatives Committee on Oversight and Government Reform

May 2018

Shaun R. Harper, Ph.D. Provost Professor of Education and Business Clifford and Betty Allen Chair in Urban Leadership Founder and Executive Director, USC Race and Equity Center University of Southern California

In my prior role as a tenured professor at the University of Pennsylvania, I founded an interdisciplinary research center focused on race in education, workplace settings, and our largersociety.l relocated that center with me to the University of Southern California last summer. I have spoken about the center's studies and my independent research at hundreds of colleges and universities across the United States. Surely, not every person on campuses at which I have spoken found my ideas and research findings agreeable. Notwithstanding, I have never had a speaking invitation withdrawn or had any group publicly protest a speech I delivered. I am grateful to have been shown the respect I think I deserve as a scholar. It is important to acknowledge, however, that university administrators absolutely reserve the right to rescind speaking invitations they extend to me or anyone else. As a matter of fact, they almost always make this painstakingly clear in contractual agreements. These contracts are between institutions and their invited guests; I see no need for congressional intervention.

For at least three reasons, tuition-paying students have the right to protest people who bring hateful and poisonous messages to their communities. First, it is their campus; they pay to be there. Students have to learn (and in the case of residential institutions, live) there long after controversial speakers have come and gone. Second, student activity fee money is often used to fund expensive speakers, including those whom College Republicans and other conservative student groups invite. Most people feel they have a say in something their money helps finance; college students who pay tuition and fees are entitled to oppose giving thousands of their dollars to an inflammatory, divisive guest speaker. Third and most importantly, college students and their professors have the constitutional right to protest. Their freedom of speech is just as valuable as controversial speakers' and their supporters'.

My Ph.D. is in higher education; this has been my primary academic field of study for two decades. Hence, I have deep appreciation for colleges and universities as marketplaces of contested ideas and sites of serious intellectual debate. Having been elected by colleagues in my research community to serve as national president of the Association for the Study of Higher Education, I feel a serious sense of responsibility to help protect this fundamental principle. I wholeheartedly agree that more speech, not less, advances the democratic purposes of American higher education. Sending millions of college educated citizens into the workforce every year with little experience talking with people who politically disagree with them is a serious failure of our nation's postsecondary institutions. But my research also shows that we send far too many future congresspersons, governors, lawyers, K-12 school teachers, college professors, and leaders in other industries into the workforce without a proper course of study on race, racism, and racial inequity. Executives and top decision-makers in most sectors of our economy are college graduates, and a disproportionate share ofthem are white. White Americans comprise 94%

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of governors,' 87% of the U.S. Senate,' 76% of the U.S. House of Representatives, 3 8o% of K-12 school teachers, 4 73% of college faculty members, 5 and 83% of college presidents." Given these demographics, postsecondary institutions act irresponsibly when we fail to create conditions that bring together whites and students of color to talk and learn across racial lines. This, as I see it, is a matter of institutional responsibility.

Studies from the USC Race and Equity Center consistently confirm that unless students are required to take ethnic studies or other racially-focused courses, they could easily matriculate through four or more years of college without ever engaging in a meaningful conversation about race. This largely applies to learning about gender and sexual orientation as well. This, not overblown concerns about assaults on free speech, must be addressed on campuses. According to the U.S. Department of Education, our country has 4,724 degree-granting postsecondary institutions. Shouting down and rescinding invitations from Milo Yiannopoulos, Ann Coulter, Ben Shapiro, and other highly compensated conservative speakers is an issue plaguing only a tiny fraction of these institutions. Avoidance of deep learning about race and other dimensions of diversity, equity, and inclusion is the bigger, much more pervasive problem that ignites campus conflict. In my expert opinion, this is for the campuses, not for the United States Congress, to address.

College student activists are often accused of attempting to suppress their professors' speech. In 2016, there were 1,430,390 instructional faculty members at degree-granting postsecondary institutions in the U.S. 7 Reports of attempted speech suppression are relatively low and sporadic, not widespread. Even if 1o,ooo professors (a hypothetically high number) experienced aggressive encounters with student activists and other so-called speech suppressors on their campuses, that would be just 0.7% of postsecondary faculty members across the country. This seems like such a low number to warrant so much national conversation about professors' freedom of speech supposedly being under attack by our students.

I have repeatedly referenced in this testimony the studies conducted at the research center I founded at Penn and now direct at USC. It seems important to offer more detail about our work. Over the past 11 years, center researchers and I have conducted climate assessments at dozens of colleges and universities in every geographic region of the country. Our process entails spending 3-4 full days conducting focus group interviews with people of color and their white counterparts on a campus. Most of our assessments have been focused on students; some others have been focused on assessing the racial climate for employees at all levels. More than 10,000 college students have been interviewed for our climate assessments. Having watched the first part of this congressional hearing, I feel a responsibility to use data from our climate studies to correct some fundamental misunderstandings of five key terms and concepts that are often associated with college student activists: microaggressions, trigger warnings, safe spaces, bias response teams, and intersectionality.

:1 Source: Center on the American Governor: http://governors.rutgers.edu/on~governors/us~governors{fastMfactsMaboutM american-governors

z Source: Manning1 J.E. (2018). Membership of the :11.5th congress: A profile. Washington1 DC: Congressional Research Service. 3 Source: Manning {:zo1.8). 4 Source: U.S. Department of Education. (2017). Digest of education statistics1 2016 (Table :zog.:zo). Washington, DC: Institute of Education Sciences, National Center for Education Statistics. 5 Source: U.S. Department of Education. {20~7). Digest of education statistics, 2016 (Table 314.40). Washington, DC: Institute of Education Sciences, National Center for Education Statistics. 6 Gagliardi, J.S. et al. (2017). American college president study, 2017. Washington, DC: American Council on Education. 7 Source: U.S. Department of Education. {20~7). Digest of education statistics, 2016 (Table 314.40). Washington, DC Institute of Education Sciences, National Center for Education Statistics.

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Microaggressions are subtle, seemingly innocuous insults experienced by people of color, women, and other marginalized populations on campuses. Critics often reduce microaggressions to unreasonable, petty complaints from whiny students who are easily insulted. As late Harvard Law School Professor Chester Pierce, 8 Columbia University Professor De raid Wing Sue,' UCLA Professor Daniel G. Sol6rzano,'0 and other scholars make clear in their pioneering research, it is not one-time encounters with microaggressions that make them injurious. Instead, it is the accumulation of them that inflicts harm. One popular clarifying metaphor involves paper cuts. A single paper cut stings, it is annoying, but the stung person manages to quickly get over it. But getting paper cuts daily, sometimes several times per day, can produce an array of more painful outcomes. This is how students of color in our studies talk about the everydayness of racial microaggressions. Noteworthy is that on all but one campus where we have conducted climate assessments, one or more Black students have been called niggers. This is not a microaggression, but instead a common, far more extreme expression of overt racism.

Trigger Warnings give students advance notice that particular content may engender psychological or emotional distress. They are to campuses what X- orR-ratings are to movies, MA-ratings are to television, and explicit content warnings are to music albums. For many years, I showed a film in a course I taught at Penn that included a rape scene. A woman who had been raped asked to speak with me after class one year. She reasonably and respectfully suggested that it would have been thoughtful of me to let the students know the movie included sexual assault. This rape survivor said I could have paused the film just prior to that moment, given students the option to excuse themselves until the scene ended, and then invited them back in to watch the rest of it. Note that she did not infringe on my academic freedom by saying I must never again show that movie in any class I teach. But a heads up, she maintained, would have been helpful. This is the degree of reasonableness that students across all racial groups express when they talk about trigger warnings in our climate studies.

Safe Spaces are restorative places on campus for marginalized, often severely underrepresented students and their supporters. In a peer-reviewed academic study I published seven years ago, I introduced the concept of "On Iyness" to describe students' experiences when they are the only one or one of only a few people from their racial groups in a campus space." Most Black and Latino students who participate in the USC Race and Equity Center's campus climate assessments tell us they encounter onlyness in just about every class they take, on their residence hall floors, and in many other campus spaces that are overwhelmingly white. They consider ethnic cultural centers to be safe spaces where they can retreat from the microaggressions and other daily forms of racial stress they encounter. Female collegians tell us that women's centers play these same important roles for them. We often hear from participants in our research that classrooms are the most unsafe spaces for them on campus. Critics typically characterize colleges and universities as dangerously liberal. Many women and the overwhelming majority of students of color in our climate studies describe their campuses

8 Pierce, C. (1974). Psychiatric problems of the Black minority.ln 5. Arieti (Ed.), American handbook of psychiatry (pp. 512- 523). New York' Basic Books. 9 Sue, D.W. (2010). Microaggressions in everyday life: Race, gender, and sexual orientation. Hoboken, NJ: Wiley. :1o Sol6rzano, D.G. and Perez Huber, L. (2o12). Microaggressions, racial. In J. Banks (Ed.), Encyclopedia of Diversity in Education (pp. 1489-92). Thousand Oaks, CA, SAGE. u Harper et al. (2011). Race and racism in the experiences of Black male resident assistants at predominantly White universities. Journal of College Student Development, 52(2), 180"200.

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as destructively conservative, hence the need for spaces like women's centers and cultural centers.

Bias Response Teams help ensure due process, Instead of administrators relying on anecdotes and little information to punish people who have been accused of wrongdoing, they empower a team of investigators to collect evidence. This is no different than a human resources department in a corporation having a team look into employees' reports of sexual harassment or racial discrimination. One major difference between bias response teams and compliance officers, private investigators, and legal counsel is that they are comprised of multiple campus community members who understand the context. I have seen no academic evidence to confirm that bias response teams are somehow biased in the collaborative execution of their unpaid investigative work.

lntersectionality is a term Kimberle Williams Crenshaw, a Columbia University Law School professor, introduced in a University of Chicago law review article nearly three decades ago." It was originally crafted to help the Courts and legal scholars understand the compounding effects of race, gender, socioeconomic status, and other markers of social position on legal outcomes for Black women. Somehow, intersectionality was misunderstood in Part 1 of this congressional hearing to be some sort of weapon against white men. I have never heard a participant in any study I have conducted misuse the term intersectionality to suggest that white men's lives and perspectives are in any way less valuable than are theirs. In fact, women across all racial groups often tell us that most of their professors are men, masculine perspectives dominate the curriculum, and most readings assigned to them are written by male authors. Similarly, students of color often tell us that most of their professors are white, Eurocentric and white cultural perspectives dominate the curriculum, and most readings assigned to them are written by white scholars. lntersectionality in the context of U.S. higher education helps us understand how women of color uniquely experience the simultaneous erasure of women and people of color, as well as the dominance of men and white people in college curricula and campus spaces.

Most colleges and universities (including my own) host dozens, sometimes hundreds of speakers each year who bring a wide range of scholarly, political, ideological, and comedic views to campus. Like me, the overwhelming majority of these speakers do not experience protests. But unlike the few speakers who do (many of whom are paid entertainers, not academicians), I would invite student protesters into a conversation with me about our ideological and factual disagreements. I would insist that those who support my viewpoints make space to respectfully listen to and talk with others who do not. Entertainers are not usually so generous; it is likely not in their financial or celebrity interests to engage disagreeable students in such educationally patient ways. Facilitating dialogue and learning across partisan and racial lines are not often entertainers' aims. This responsibility ought not rest entirely with handsomely compensated campus visitors. It really does belong to college presidents, other senior leaders, and faculty members like me. But one major problem is that few of us who work in higher education were ever taught how to responsibly handle these contested issues. Getting administrators and faculty members the professional preparation we need to effectively deal with rare instances of contested speech on campus is not an issue for Congress or the Courts, but instead is the responsibility of those entrusted with institutional governance (e.g., regents and boards of trustees).

12 Crenshaw, K. (:1.989). Demarginalizing the intersection of race and sex: A black feminist critique of antidiscrimination doctrine, feminist theory and antiracist politics. University of Chicago Legal Forum, 1{8), 139~167.

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Mr. JORDAN. Dr.Harper, are you suggesting entertainers don’t have First Amendment rights? Mr. HARPER. I am absolutely respecting that entertainers have First Amendment rights. What I am suggesting, though, is that they are not there to advance educational purposes. Mr. JORDAN. They’re not? Mr. HARPER. And these are educational institutions. Mr. JORDAN. They were invited by a university to come, and they have First Amendment rights, but they’re not there to advance education? I don’t get that. But we’ll get to questions. I just want to be clear that entertainers, just because you’re an entertainer doesn’t mean you forfeit your personal liberties on the college campus, is that right? Mr. HARPER. Absolutely. Everyone. Mr. JORDAN. Okay. Dr.George, you’re recognized for your 5 minutes.

STATEMENT OF ROBERT P. GEORGE Mr. GEORGE. Thank you. I wish to thank the chairman, the ranking member, Mr. Raskin, Mr. Palmer and members of this committee for holding this important hearing and inviting me to give testimony. It’s a particular honor to appear alongside Professor Stanger and Professor Weinstein whose courage, integrity, and commitment to freedom of thought and expression and robust civil discourse are inspiring. I’ve provided the committee staff with my formal written testimony. This afternoon, I wish to share some thoughts drawn largely from a statement I issued some months back with my dear friend and teaching partner, Professor Cornell West. Professor West and I, though representing different political perspectives, shared concerns about the state of American higher education and the condition of American democracy. We worry that too narrow a range of perspectives is represented in a great many colleges and universities, especially among faculty, and that this tends to create an echo chamber in which education degenerates into indoctrination. Dissent is stigmatized, marginalized, and sometimes even punished or driven off the campus. We also worry that the American people are becoming polarized in ways that foment a level of distrust and hostility to each other and an unwillingness to listen to and engage each other that undermines the foundations of our democratic civic life. And Mr. Raskin is correct that at the highest levels, this is being exacer- bated. It’s also alas bipartisan. By hard experience, mankind has learned that the pursuit of knowledge and the maintenance of a free and democratic society require the cultivation and practice of certain virtues, including intellectual humility, openness of mind, and above all, love of truth. These virtues will manifest themselves and be strengthened by one’s willingness to listen attentively and respectfully to intelligent people who challenge one’s beliefs, and who represent causes one disagrees with and points of view one does not share.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 34 That’s why all of us should seek respectfully to engage with people who challenge our views. And we should oppose efforts to silence those with whom we disagree, especially on college and university campuses. As the great 19th Century English liberal philosopher John Stu- art Mill thought, a recognition of the possibility that we may be in error is a good reason to listen and honestly consider and not merely tolerate grudgingly to other points of view that we do not share, and even perspectives that we find shocking, and even scandalous. What’s more, as Mill noted, even if one happens to be right about this or that disputed matter, seriously and respectfully engaging people who disagree will deepen one’s understanding of the truth and sharpen one’s ability to defend it. Now, none of us is infallible. That should be the starting point of any discussion of intellectual life. None of us is infallible. Wheth- er you’re a person of the right, the left, the center or wherever, there are reasonable people of goodwill who do not share your fundamental convictions, and yet, too often we refuse to acknowledge that. Now this doesn’t mean that all opinions are equally valid or that all speakers are equally worth listening to. It certainly does not mean that there’s no truth to be discovered, nor does it mean that you are necessarily wrong. But they are not necessarily wrong either. So someone who is not fallen into the idolatry of worshipping his or her own opinions and loving them above truth itself will want to listen to people who see things differently. In order to learn what considerations, evidence, reasons, arguments, led them to a place different from where one happens, at least for now, to find oneself. All of us should be willing, even eager to engage with anyone who is willing to do business in the currency of truth-seeking discourse by offering reasons, marshaling evidence, and making arguments. The more important the subject under discussion, the more willing we should be to listen to and engage, especially if the person with whom we are in conversation will challenge our deeply-held, even our most cherished and identity-forming beliefs. It’s all too common these days for people to try to immunize from criticism opinions that happen to be dominant in their particular community, wherever they are. Sometimes this is done by ques- tioning the motives, and thus, stigmatizing dissent from prevailing opinions, or by disrupting their presentations, or by demanding that they be excluded from campus, or if they’ve been invited, disinvited. Sometimes students and faculty members turn their backs on speakers whose opinions they don’t like, or simply walk out or refuse to listen to those whose convictions offend their values. Of course, the right to peacefully protest, including on campuses, is sacrosanct. Absolutely. But before exercising that right, I encourage my students to ask themselves, Might it not be better to listen respectfully and try to learn from a speaker with whom one disagrees.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 35 Might it better serve the cause of truth seeking to engage in a frank, civil discussion. Our willingness to listen to and respectfully engage those with whom we disagree contributes vitally to maintenance of a milieu in which people feel free to speak their minds, consider unpopular opinions, explore the lines of argument that may undercut established ways of thinking. Such an ethos protects us against dogmatism and group think, both of which are toxic to the health of academic communities and to the functioning of democracies. When universities are permitted to degenerate into ideological echo chambers, which is what tends to happen when we lack viewpoint diversity, especially among faculty, freedom of thought and expression quickly come under attack and are sooner or later lost. Dissent from campus orthodoxy comes to be perceived, and even experienced as attacks on our communities’ values and even personal assaults. People begin defining what they call hate speech way too broadly in saying such things as, Free speech is violence. Some may even begin defending actual violence, violence against dissenters from campus orthodoxies as a form of free speech. [Prepared statement of Mr. George follows:]

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Is There a Cure for Campus Illiberalism?

Testimony of Robert P. George

United States House of Representatives

May 22,2018

Colleges and universities have three fundamental purposes: the pursuit

of knowledge of the truth; the preservation of knowledge securely

obtained; and the transmission of knowledge. Of course, there are

other desirable ends that colleges and universities legitimately seek

while also pursuing these purposes, but these three are the

fundamental, constitutive, defining purposes of academic institutions.

All the other things such institutions legitimately do are founded upon

them, and anything they do that undermines these purposes they

should not be doing. So, for example, though I support college

athletics, I support them only insofar as they do not damage the

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academic program-the transmission of knowledge. When, or to the

extent that, they harm the academic program, they need to be

reformed or, if reform isn't feasible, abolished.

There are certainly colleges and universities today, as in the past, which

place too much emphasis on athletics, to the detriment of the academic

program. But athletics are not the greatest threat to the integrity of

our colleges and universities today. A far greater and graver threat is

posed by the politicization of the academy. The problem is most vividly

manifest in the phenomenon of campus illiberalism. By that, I mean

the unwillingness of so many members of college and university

communities to entertain, or even listen to, arguments that challenge

the opinions they happen to hold, whether the opinions have to do

with climate science, affirmative action and racial or ethnic

preferences; abortion; welfare policy; marriage and sexual morality;

U.S. foreign and defense policy; the international economic order; or

the origins of human consciousness.

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At many institutions, speaking invitations to dissenters from campus

orthodoxies are simply not issued. Or, if they are issued, dissenting

speakers are "disinvited" under pressure from opponents of their

views. Or, if they are not disinvited, they are pressured to withdraw

under the threat of disruptive forms of protest. Or, if they do not

withdraw, they are interrupted by abusive protestors, shouted down,

or even subjected to violent assault {as we saw happen at Middlebury).

And it is not just visitors to campuses. Faculty and student dissenters

within campus communities are subjected to abuse and intimidation

(as we have seen at Evergreen State and other places). Every effort is

made to ensure that they are denied opportunities to speak their minds

or are intimidated into silence.

I do not wish to paint with too broad a brush here. The situation is

better or worse at different institutions. As it happens, it is not at all

bad at my own institution. Recently, I complete my thirty-third happy

year at Princeton, where I have never been subjected to intimidation or

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abuse (though threats from off campus have been made against me,

one of which landed the perpetrator in a federal prison, and threats

have been made against Princeton for having me on its faculty.) But

you all know the cases that I have in mind at colleges and universities

around the country.

In referring to these cases of campus illiberalism you may have noticed

that I spoke of this illiberalism as the way the problem I am concerned

about "is most vividly manifest today." In other words, the denial of

speaking opportunities, the disinviting of speakers due to their

opinions, the disruption of meetings and shouting down of dissenting

speakers, are what get the attention of the public. But these are merely

some manifestations. The core of the problem is this: Many

institutions are letting the side down when it comes to the

transmission of knowledge by failing to ensure that our students, at

every level, are confronted with, and have the opportunity to

consider, the best that is to be said on competing sides of all

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questions that are in dispute among reasonable people of goodwill.

They are permitting prevailing opinions on campus to harden into

orthodoxies, orthodoxies that go largely unchallenged, leaving students

with the false belief that there are in fact no disputes on these matters

among reasonable people of goodwill. At the core of our problem is

the toxic thing that provides an environment in which illiberalism

flourishes and can be expected to manifest itself in the ways it

manifests itself today, namely the phenomenon of groupthink.

We fail to understand the depth of problem, or appreciate the danger it

poses to intellectual life, if we take a static view of knowledge, thinking

of it as information that is passed into the mind of the recipient who

records it there and draws upon it as needed. This is worse than an

oversimplification. The transmission of knowledge very often goes

beyond the acquisition of information (or skills) and requires the

engagement of the knowledge seeker with competing perspectives and

points of view. It also requires certain virtues, including open-

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minded ness, respect for what Mill called "liberty of thought and

discussion," intellectual humility-humility of the sort one can possess

only insofar as one appreciates, and not merely notionally, one's own

fallibility-and love of truth. It is the task of colleges and universities,

precisely as institutions of learning, to expose students to competing

points of view and to foster in them those virtues. That is necessary not

because there are no truths to be attained, but, rather, because the

pursuit of truth and the deeper appropriation of truths and their

meaning and significance, requires it.

You see, then, that whatever is to be said about claims that the

predominance of certain views and their proponents on campuses, and

the exclusion of others, the problem I am calling attention to here is

less about unfairness than it is about the need to avoid and, where it

has set in, overcome groupthink in order to fulfill a constitutive purpose

of academic institutions. We owe that to our students-whether they

like it or not. It is a scandal when students are graduated from liberal

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arts colleges and university liberal arts programs with no understanding

{or, worse yet, grotesque misunderstandings) ofthe arguments

advanced by serious scholars and thinkers who dissent from campus

orthodoxies on issues such as those I mentioned a few minutes ago.

Even if the opinions the students happen to have acquired in an

environment of groupthink happen to be true, students' ignorance of

the arguments of dissenters will prevent them from understanding the

truth as deeply as they should and actually appropriating it-that is to

say, understanding why it is so and why competing views have

nevertheless attracted the attention and even the allegiance of serious

thinkers.

I believe it was the great jurist Learned Hand who said that "the spirit of

Liberty is the spirit of being not too sure one is right." In making that

point, Hand was not endorsing radical skepticism or relativism or

anything of the sort. Rather, he was pointing to the need for the virtue

of intellectual humility in light of the inescapable reality of human

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fallibility. His focus was on the need for that recognition and its

corresponding virtue in the project of establishing and maintaining

republican government and respect for freedom. But what he says

about the spirit of liberty is also true of the spirit of truth seeking-a

sense of one's own fallibility, a sense that one could be wrong, even in

one's basic premises and most fundamental beliefs, an openness of

mind, a willingness to entertain criticism and to engage critics, all of

these things are essential to the truth seeking project, too. And that

means that they must be cultivated in institutions whose mission

includes the pursuit and transmission of knowledge.

That is not to say that we should not be advocates of our points of

view, or that we should not be engaged politically. I would be a gross

hypocrite, at best, if I were to suggest any such thing. Now there are

people who see political engagement as incompatible with the

scholarly vocation. But politically engaged scholars, like all scholars,

need to be highly cognizant of their own fallibility-even on matters

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about which they care deeply, and even when it comes to causes in

which they are profoundly emotionally invested. Even as advocates, we

must cultivate intellectual humility and a willingness to entertain the

other guy's arguments in a serious way. One must never imagine that

one cannot possibly be wrong about this or that cherished conviction,

or that one's political adversaries and intellectual critics cannot possibly

be right. That is fatal to the truth-seeking enterprise.

I think the proper attitude for us to hold is the attitude Plato teaches us

to adopt, especially in the Gorgias. Socrates' attitude in that dialogue

strikes me as exactly the one we need to emulate if we are to be good

scholars and teachers. We must always be on the lookout for, and be

open to, the true friend, that is to say, the person who will confer upon

us the inestimable benefit of showing us that we are in error, where in

fact we are in error. The true friend, in correcting our mistakes, does us

the very best service. We need to see that, and we need to help our

students to see it. The person who sees his intellectual adversary as an

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enemy to be defeated, rather than as a friend joined with him

dialectically in the pursuit of a common aim, namely, knowledge of the

truth, is already off the rails. He is in grave danger of falling into the

ditch of sophistry.

So openness to argument, to having one's premises and most

fundamental beliefs and values challenged, is vitally important to the

knowledge-seeking mission that defines liberal arts institutions (and

professional schools that share the knowledge-seeking aspirations of

liberal arts institutions) as the kinds of things they are. A spirit of

openness to argument and challenge, where it flourishes in an

academic culture, is what immunizes academic institutions against

groupthink and chases the groupthink away when it comes knocking at

the door.

Part of the problem, of course, is that once groupthink has taken hold,

folks who are caught up in it don't recognize the problem. When is the

last time you met somebody who said, "yeah, you know what, my

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problem is that I'm caught up in groupthink. I tend to just think like

everybody else around me thinks." I've heard someone say that only

one time in my life-and she didn't put it quite that starkly. The trouble

with groupthink is that when you're in it, you generally don't know

you're in it. You may realize that not everyone shares your views, but

you will suppose that those who dissent from them are irrational or ill

motivated. You will imagine that anyone who disagrees with you is a

rube or a bigot or a tool of nefarious interests-a fool or a fraud. When

someone is in groupthink, he could pass a lie detector test claiming that

he is not in groupthink. But that doesn't mean he's not in groupthink.

And wherever ideological orthodoxies settle into place and are not

subjected to serious questions and challenges, you have to worry about

groupthink setting in. And that's true whether or not campus

illiberalism manifests itself in the more visible ways we are now seeing

so frequently, with dissenting speakers being excluded from campus or

being shouted down, or whatever.

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Now it seems to me that viewpoint diversity or what we might call in an

academic setting intellectual diversity has its value as a kind of vaccine

against groupthink, and as an antidote to groupthink when it begins to

set in. Diversity of views, approaches, arguments and the like is the

cure for campus illiberalism. People who have the spirit of being not

too sure that they are right, people who want to be challenged because

they know that challenging and being challenged are integral and

indispensable to the process of knowledge-seeking, such people

(whatever their own personal views) will want intellectual diversity on

campus in order for the institution to accomplish its mission.

Now of course we all know that it's pretty hard to get this intellectual

diversity. And I think there are a number of reasons for that. While in

my own experience it's true, and some of my colleagues on the

progressive side tell me that in their experience it's true, that there is

sometimes blatant, conscious, obviously deliberate discrimination in

hiring and promotion against people who dissent from campus

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orthodoxies, I happen to think that blatant, conscious, deliberate

discrimination is not the heart of the problem. I believe the more

fundamental challenge is not conscious and deliberate discrimination,

but rather something else.

In this vale of tears, we human beings, fallen and frail creatures that we

are, have a lot of trouble appreciating meritorious work and even good

arguments when they run contrary to our own opinions, especially

when we're strongly emotionally attached to those opinions. As I see it,

this isn't a liberal problem, or a progressive, or a left wing problem. It's

a human nature problem. Anytime an intellectual or political orthodoxy

has hardened into place-it doesn't matter whether it's a left wing

orthodoxy or a right wing orthodoxy-it's going to be very difficult for a

lot of people to draw the distinction between "work I disagree with

despite its being really very good and challenging, and interesting, and

important," and "work that goes contrary to what I just know to be true

on issues that are important and critical to me and bound up with my

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sense of who I am as a, fill in the blank: progressive, conservative,

feminist, libertarian, Christian, atheist, or whatever." People will

experience challenges to the dominant opinions as outrageous attacks

on truth, indecent assaults on essential values, threats to what is good

and true and right and just, intolerable violations of the norms of "our"

community.

So I ask myself the question: Well what should we do? First, I would

say this to my friends in academia who are on the more liberal or

progressive side of the ideological street, and who perceive the

problem as I do: Number one, we need to expose and protest against

any conscious discrimination based on viewpoint; number two, by both

precept and example, we need to encourage our colleagues and

students to be rigorously self-critical-to acknowledge fallibility (their

own as well as everyone else's} and be open to arguments, evidence,

and reasons that may be adduced against any position they happen at

the moment to hold; and number three, we need truly to bend over

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backwards to appreciate the quality of good work that challenges our

own judgments, conclusions, values, and beliefs.

We need to encourage people to be self-critical in ways that would

enable them honestly to say, as I might say about the work of, for

example, my colleague at Princeton, Peter Singer. 11Well, you know, I'm

really scandalized by his defense of the moral permissibility of

infanticide, but there's an argument he makes that's got to be met. And

the burden is on me to make the argument that our dignity as human

beings comes by virtue of our humanity-our status as rational

creatures, beings possessing, at least in root form, even in the earliest

stages of development, the capacities for the types of characteristically

human activities that give human beings a special kind of standing and

inviolability. The burden is on me in other words to meet his challenge.

I want my colleagues on the other side to take the same position about

work by more conservative scholars, especially in these hot button

areas. But I acknowledge that it's hard to do. And it's especially hard to

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do when orthodoxies have hardened into place and one is not even

hearing arguments against one's own positions. And when one is not

hearing them, and everybody one knows, and everybody in one's circle,

tends to think the same thing about that body of issues, no matter how

much diversity there is on other stuff, we're likely headed for

groupthink.

When one is hearing the same thing from everyone whom one

respects-when one is being reinforced in one's own opinions by all

one's friends and colleagues, whether one is a student or faculty

member-the motivation to think more critically tends to be very hard

to work up. It really is. Working it up is so much easier when one is

regularly, in the normal course of things, being challenged by

thoughtful people who do not always see things just as one does

oneself. So it's best for us not to get ourselves into this fix in the first

place by permitting ideological orthodoxies to form on college and

university campuses. But if they have formed, then our challenge is to

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help our colleagues to appreciate work-and be willing to say that they

appreciate work-that is meritorious even when they do not agree with

the arguments or positions being advanced.

And then there is something else. A growing number of prominent

university leaders around the country-Robert Zimmer, president of

the University of Chicago, Michael Roth, president of Wesleyan

University, Christopher Eisgruber, president of Princeton University,

Carol Christ, chancellor of the University of California, Berkeley, Ronald

Daniels, president of Johns Hopkins University, among others (most of

whom are, by the way, self-proclaimed political progressives)-are

publicly acknowledging the groupthink or "echo chamber" problem in

American higher education and are asking for help in doing something

about it. Here alumni and friends of American higher education who

want to help make a difference have a golden opportunity. They can

join efforts to found or support campus initiatives aimed at bringing a

wider diversity of views into the discussion and turning what have all-

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too-often been campus monologues into true dialogues (or trialogues,

or quadralogues, or quintalogues). Centers and institutes have been

created at various colleges and universities around the country to do

just that. And they are already having an impact.

I want to close by giving you a couple of examples of the value of

viewpoint, or intellectual diversity, again from my own experience. One

is the James Madison Program at Princeton, which I have the honor to

direct. The program was founded 18 years ago. Its impact on the

intellectual culture of Princeton, precisely by bringing viewpoint

diversity into our community in a serious way, has been remarkable. It

gives me enormous satisfaction that this opinion of mine is shared by

many of my liberal colleagues who share none of my other opinions.

They have praised the Madison Program for turning what might have

been campus monologues into true dialogues-benefitting everybody

in the process. The presence on campus of an initiative like the

Madison Program ensures that there are people around who think

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different things, even about fundamental issues that everybody cares

about, and which many people assume all academics are on one side

of.

That's great, because it means that in general discussions across the

university, and not just at the Madison Program's own events, people

cannot simply suppose that everybody in the room shares the same

assumptions or holds the same opinions. People know that they have

to defend their premises-because they will be challenged. That makes

for a different, and much better, and more serious, kind of

engagement-a kind of engagement that profoundly enriches the

intellectual life for the entire community.

The second example, again from my own experience, is the experience

I've had teaching with my beloved friend and colleague Cornel West.

Now Cornel and I differ about some very important issues. I'm a

conservative. He is honorary co-chairman of Democratic Socialists of

America. But we teach together at Princeton whenever our schedules

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permit. A typical West-George seminar includes readings from

Sophocles, Plato, St. Augustine, Marx, Mill, Newman, Kierkegaard,

Hayek, Solzhenitsyn, John Dewey, C.S. Lewis, Reinhold Niebuhr, and

Gabriel Marcel. What happens in our seminars is magical and the

impact on our students is amazing. What you have here is a genuine

collaboration. Cornel and I work together across the lines of ideological

and political difference in the common project of truth-seeking,

knowledge-seeking, wisdom-seeking, engaging with each other and our

students in a serious, respectful, civil manner, striving to understand

each other and learn from each other, treating each other, not as

enemies, but as partners in the dialectical process of seeking truth,

knowledge, wisdom.

Although we teach "great books," our approach is the very opposite of

antiquarian: We look for the timeless meaning and contemporary

significance of the texts we assign. We consider existential, moral,

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religious, and political questions that are important to us and our

students in the context of the writings we examine.

And here is the thing that really matters: The students learn, and they

learn how to learn. They learn to approach intellectual and political

matters dialectically-critically engaging the most compelling points to

be adduced in favor of competing ideas and claims. They learn the

value and importance of mutual respect and civility. They learn from

two guys with some pretty strong opinions, neither of whom is shy

about stating them publicly, that the spirit of truth-seeking, like the

spirit of liberty, is a spirit open to the possibility that one is in serious

error.

Let me be more specific. I want you to understand what I'm saying

here because what Cornel and I do really is, I believe, part of the cure

for campus illiberalism. Now, I've always prided myself as a teacher on

being able to represent, accurately and sympathetically, moral and

political views I myself do not share. So if I'm teaching about abortion,

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or something having to do with affirmative action, or marriage, or

religious freedom, or campaign finance and the First Amendment, or

the Second Amendment right to bear arms, or whatever it is, in my

constitutional interpretation classes or my civil liberties classes, I like to

think that if someone came in who happened not to know which side I

was on, he or she would not be able to figure it out from my

presentation of the competing positions and the arguments for and

against them. Now, that's not because I think professors should hide

their views or anything like that. Outside the classroom, I certainly do

not hide my views! It's just that I don't think that classrooms should be

used to proselytize or push a moral or political agenda or recruit

adherents for one's causes. There is a place for catechism classes and

the like, but that place is not the college or university classroom. The

classroom is for exposing students to the best that is to be said for the

competing views so that they can learn to think more carefully,

critically, and, perhaps above all, for themselves. So, as I say, that is

why I always, without fail, regardless of how much I care about an

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issue, present the very best arguments, not only for my own positions

but for positions I strongly reject.

What I have learned in teaching with Cornel, though, is this: as good as

I think l am at this, I am not good enough. The evidence for that is

simply that time after time in the course of our seminars I have found

Cornel saying something, or making a compelling point in response to a

point that I or one of the more conservative students has made, that

simply would not have occurred to me-a point that needs to be

seriously considered and engaged. Had Cornel not been there, the

point would not have been made, and the benefit to be conferred on all

of us in grappling with it would not have been gained. And Cornel tells

me that he has had precisely the same experience, time and time again.

He has found me making points or developing lines of argument that,

he says, he has never considered and which simply would not have

occurred to him, despite the fact that he shares my aspiration to

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represent as fully and sympathetically as possible positions and

arguments from across the spectrum.

Now that, it seems to me, is a very good argument for promoting

intellectual diversity. By the way, I think it's a very good argument for

team teaching. I think team teaching is a wonderful thing to do,

especially if you have people who disagree about things teaching

together. And the things in dispute do not have to be political things.

The disagreements might be about the proper interpretation of

Shakespeare or the Bible, or any of a range of other subjects, especially

(but not exclusively) in the humanities and social sciences. But it's a

very valuable thing to do, and more of it should be done. But the truly

important thing is this: A healthy intellectual milieu is one in which

students and scholars regularly encounter competing views and

arguments, where intelligent dissent from dominant views is common

and the value of dissent is understood and appreciated, where beliefs

that can be supported by arguments and advanced in a spirit of

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goodwill are common enough that they do not strike people as

reflections of ignorance, bigotry, or bad will, and people who do not

share them do not experience them-because they seem so alien-as

personal assaults or outrages against the community's values. It's great

to have competing views among instructors in the classroom; I realize,

however, that such a thing is a luxury that most institutions cannot

afford to provide on a regular basis. But diversity among faculty on

campus, even if not in the same classroom, helps to cure campus

illiberalism. It voids the tendency of people-students and faculty

alike-who hold positions that happen to be dominant to suppose that

the college or university is theirs, and is for people like them, not for

people who disagree with them. It sends a message that all who seek

knowledge of truth and wish to pursue it in a spirit of civility and

mutual respect are welcome here as insiders sharing the truly

constitutive values and goals of the community, not outsiders who are,

at best, merely to be tolerated as if they were present in the

community only on sufferance.

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Am I advocating "affirmative action" for conservatives? Not at all. I am

advocating attitudes and practices that will cure campus illiberalism

without the need to give conservative scholars preferences in hiring

and promotion. If conscious and unconscious prejudice against people

who dissent from prevailing orthodoxies were defeated, if intellectual

diversity were truly valued for its vital contribution to the cause of

learning, the hiring problems would take care of themselves. We would

not have departments of sociology or politics or history with forty-three

progressives and one conservative (or, more likely, one libertarian).

Nor would we have the embarrassments, and (as at Middlebury) the

tragedy, of campus illiberalism.

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Mr. JORDAN. Thank you so much, Doctor. I want to thank all our witnesses for outstanding testimony and for the experiences you had and what you bring to the committees today. I’m going to start with the gentleman from Alabama for his 5 minutes of questions. Mr. PALMER. Thank you, Mr. Chairman. Mr. Harper, some of what you said is very troubling. You made the statement that ‘‘student activity fee money is often used to fund speakers, including those whom College Republicans and other conservative students groups invite.’’ And I’m reading from your written testimony. ‘‘Most people feel they have a say in something their money helps finance; college students who pay tuition and fees are entitled to opposed giving thousands of their dollars to an inflammatory, divisive speaker.’’ First of all, I would hate to have one of my children at a college that charges them thousands of dollars in university fees. I have some serious issues with that. What I want to ask you, do conservative students who pay those same fees have a right to demand that their activity fee not be used to fund speakers or programs with which they disagree? Do they have that same right? Mr. HARPER. Absolutely. Mr. PALMER. So they could take action? They could go to the university and demand, and the university would be required to com- ply with that demand not to invite somebody that these students disagreed with? Mr. HARPER. Require, no. As is the case with the disinvitations of the conservative speakers—— Mr. PALMER. Well, let me ask you this: If there were somebody they disagreed with from a liberal perspective, would those students be able to disrupt that speech, shout them down, do whatever they wanted to? I don’t know where you’re going with that, but—— Mr. HARPER. To be—— Mr. PALMER. —and then let me add this: You also pointed out— and I’ll come to you, Dr. Stanger. And I do appreciate you and Dr.Weinstein being here—you said that these activities where literally, these conservative students or newspapers have been confiscated. That’s speech, isn’t it? You agree that’s written speech? Would you agree with that? Mr. HARPER. Absolutely. Mr. PALMER. Thank you very much. Because University of Or- egon, Oregon State actually paid $101,000 to settle a suit over trash in conservative newspaper, student newspaper, where they confiscated those papers. And the interesting thing about it is, Mr. Chairman, the U.S. 9th Federal Circuit upheld that decision. So that was pretty egregious. You say it’s rare. Does that mean that you accept the denial of free speech, if it’s rare? Is that acceptable? Mr. HARPER. As I stated—— Mr. PALMER. That’s a yes or no. I mean, we’re not going to fili- buster. It’s a yes or a no. I’ve got 2 minutes and a half left Mr. HARPER. I’m a person who speaks in context. I can’t offer you——

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Mr. PALMER. That is in context. It’s a simple question. You can answer either answer it yes or no. Do you support anyone, 6 percent of professors denying any student their right to free speech to publish a conservative paper, to publish a liberal paper, if it disagrees with their position? Do you support even .6 percent denial of free speech? Mr. HARPER. I refuse to answer your question without the opportunity for context. Mr. PALMER. That’s because you don’t have an answer. Mr. HARPER. I do have an answer. Mr. PALMER. No, you don’t have an answer. Mr. HARPER. But you’re not willing to allow me to patiently—— Ms. STANGER. May I? Mr. PALMER. I’m doing—this is what happens on college campuses. I’m not allowing you to speak. Dr.Stanger. Ms. STANGER. Let me try to explain what I think Dr.Harper was saying. He made a really important point. He made a distinction between entertainers and scholars. And I think that’s precisely the distinction we need to be making. Be- cause the most disruptive speakers have been non-scholars. They’ve been entertainers. They’ve been people that invite themselves. I’m talking about Milo. I’m talking about Richard Sander. And if we would just allow, you could solve this very simply by saying that if a faculty has invited a speaker to campus, or they’ve cosponsored, a department has cosponsored it, it is probably worth their students engaging. So I think we can really solve this by just letting faculty decide. If you look at all the cases that really upset you, I think you’ll find that there was no faculty involvement. And often, no student group involvement. So in some sense, that creates the sense that there’s this wildly crazy thing going on on our campuses. That simply isn’t so. So I just wanted to amplify an important point Dr.Harper made. Mr. PALMER. Well, I just point out—— Ms. STANGER. But I think you are asking good questions. Mr. PALMER. At Smith College, ‘‘crazy’’ is a banned word. And you’ve brought up the fact that colleges, it is the invitations to entertainers and non-scholars, okay? Ms. STANGER. Yeah. Mr. PALMER. What about for college commencement speeches where they invite non-scholars to give a commencement address? And particularly lately, some of the ones that we’ve heard that are very offensive to conservative students and their parents who, by the way, pay thousands and thousands of dollars for their kids to attend a university. I mean, if you’re going to make a distinction about who can be invited to campus, and it can only be scholars, I think that would apply to commencement address as well. Mr. Chairman, I yield Ms. STANGER. If I may? Mr. HARPER. May I respond to that? As Mr. Raskin noted in his eloquent opening remarks, there were only 19 successful disinvitations nationally last year. There were more than 4,000 commencements. And hundreds, perhaps thou-

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 64 sands more, speeches and lectures and entertainment activities on college and university campuses. Mr. PALMER. So is that acceptable, that 19 people were denied their opportunity to speak? Mr. HARPER. As I said in both my written and oral testimony—— Mr. PALMER. This whole thing about distinguishing between scholars and entertainers speaking on college campuses apparently doesn’t apply to commencement speeches. Ms. STANGER. No, listen. If I may, as a peacemaker here, I think my rule of saying that if the faculty or the administrator has invited the speaker to campus, it is an absolute disgrace to cave into protesters and disinvite them. So, again, I think the context really matters. If you go back and look at the cases that are bothering you, it’s usually an instance where an institution extended an invitation, an official invitation, and somebody caves into that pressure. And I think that’s wrong, and I agree with you. Mr. PALMER. Do you understand—— Ms. STANGER. But that’s why context matters. You—— Mr. JORDAN. Wait, hang on. Mr. PALMER. The question was—let me finish, Mr. Chairman. My question was not about whether or not it’s appropriate to invite any of these people. The question is, is it appropriate to deny anybody speech? Is there a quota that says, Well, you know, only 19? Ms. STANGER. As a faculty member, I would like to say that faculty should be able to decide what sort of speech is worth their students engaging. Mr. JORDAN. Dr.Stanger, was the incident on your campus where you were physically assaulted, was that a faculty-sanctioned event? Ms. STANGER. Absolutely. It was co-sponsored by the Department of Political Science, and a student group on campus invited Charles Murray in. Mr. JORDAN. Yep, that’s what I thought. Ms. STANGER. So my reasoning is consistent. Mr. JORDAN. No, no, I thought that was the case. Ms. STANGER. No, I’m not saying you thought it wasn’t. Mr. JORDAN. I thought I knew the answer to that question before I asked it. That’s why I asked it. The professor is recognized for 5 minutes. Mr. RASKIN. Mr. Chairman, thank you very much. Well, let me start with this: Dr.Stanger, I’m a little puzzled about the distinction between a faculty invitation and invitation from a student group. At least, I never thought of that before. And I just wanted to give you the chance to take a second to illuminate that. I mean, certainly, and I think a lot about the great student movements of American history that have been the subject of a lots of censorship and suspension and expulsion: the civil rights movement, the antiwar movement on campuses. Student groups were inviting people to campus that weren’t sanctioned by the university or by professors. Shouldn’t the students, if they are a recognized student group, at the very least,

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00070 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 65 have the opportunity to invite people to campus? And shouldn’t they be invited to full First Amendment rights? Ms. STANGER. Absolutely. I would agree with you entirely. So if I wasn’t clear about that. I think that any officially recognized student group or faculty member who wants to bring a speaker to campus should be respected. Mr. RASKIN. Okay. Cool. So we’ve talked today about both the heckler’s veto. And we saw that, for example, in the case where you and Charles Murray got accosted by the student group that assaulted you. But there’s also a bureaucrats veto. And it’s maybe not as sexy or electrifying in public, but Georgetown University, which is one of our great universities a few miles away from here, refuses to recognize the pro-choice student group. And I just wondered, does everybody on this panel agree that the hecklers veto is wrong, that Dr.Stanger faced, but the bureaucrats’ veto is also wrong of, for example, the pro-choice student group at Georgetown. And maybe if I could follow yes and no as much as possible, just go down the line. Dr.George, do you agree? Mr. GEORGE. I don’t. I think that there is a difference between religiously affiliated organizations, especially seminaries and nonsectarian universities—— Mr. RASKIN. I’ll come back to you. I’m very interested in that, but let me just go down the line. Dr. Harper. Mr. HARPER. Yes. Mr. RASKIN. You agree. Okay. Dr. Stanger? Ms. STANGER. Yes. Mr. RASKIN. Dr. Weinstein? Mr. WEINSTEIN. I agree. It is problematic. Mr. RASKIN. Yeah. And Mr. Langhofer? Mr. LANGHOFER. I agree a bureaucratic veto is problematic, but I agree with Dr.George that a private university, the First Amend- ment protects the private universities’ rights to associate—— Mr. RASKIN. Okay. So let me, let me—— Mr. LANGHOFER. —just like it protects the individuals’ rights. Mr. RASKIN. Okay. So let’s come to that because that’s a critical point here. If I understand Weinstein, Stanger, Harper, you guys uphold the right of freedom of expression on all campuses, public and private. Is that right? Okay. Now on the two ends, we have the gentleman who say—— Ms. STANGER. No, no. Mr. RASKIN. No? I’m sorry. Ms. STANGER. I think it’s different for private—you know, by law, it is different for private institutions. Mr. RASKIN. Okay. I’ll come back to you then, too Ms. STANGER. The First Amendment protects religious freedom. Mr. RASKIN. Dr.George and Mr.Langhofer, you would agree that if the University of Virginia said, we are going to not allow a pro- life student group to organize on campus, even if they have the req- uisites number of students, and so on, that would be unconstitutional? Mr. GEORGE. Correct.

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Mr. RASKIN. Okay. But you’re saying it should be matter of indifference to the public, to academics, and certainly to Congress, if a private university, like Liberty College in Virginia or Yale Univer- sity, discriminates against a pro-choice group or a pro-life group; is that right? Mr. LANGHOFER. I’m not saying it’s a matter of indifference to the public or to any of its constituents. I’m saying—— Mr. RASKIN. As a matter of public policy. Mr. LANGHOFER. No, the First Amendment does not require private universities to—— Mr. RASKIN. Yes. That’s the State acting requirement. Okay. Mr. LANGHOFER. —association, correct. Mr. RASKIN. Okay. Mr. LANGHOFER. And so it is not a First Amendment thing. Can the university itself, can the public or its constituents put pressure on it to change those? Sure, but—— Mr. RASKIN. Okay. Dr.George, where are you on that? Do you care if Yale University, which is religiously affiliated, or Liberty University, discriminates against groups based on their political viewpoint? Or do you think that’s something, that what matters is the right of the institution as the speaker, as opposed to the students who go there? Mr. GEORGE. Well, I think we’re on the same wavelength as far as what the Constitution requires because of the State action re- quirements? Mr. RASKIN. Yes. Mr. GEORGE. I also strongly believe in truth in advertising. Yale was once a religiously affiliated university. It had a position on fundamental moral and religious—— Mr. RASKIN. Oh, so Yale was covered by the free speech dictum, but Liberty University is not? Is that what you’re saying? Mr. GEORGE. Yale advertises itself as nonsectarian. If Yale said we are a sectarian liberal university, we do not tolerate people at this university who do not share our convictions on marriage—— Mr. RASKIN. But certainly, all of their preambles and forewords talks about balancing liberty of speech with inclusion and diversity. Mr. GEORGE. That’s right. Mr. RASKIN. So it’s going to be up to them to decide. But this is something that really baffles me, which is why people can get so exorcised about what happens at Yale or Wesleyan or another private college or university, but not at Liberty University, not at Bob Jones University. Lots of private universities discriminate based on people belong- ing to the wrong political party, wanting to set up a pro-choice group, wanting to set up a gay rights group. And I think there’s a real problem in your position you need to consider. Mr. GEORGE. I actually think the problem is with your position. I think you need to respect the right of religious people or people of other sectarian views even if they’re not—— Mr. RASKIN. Why just religious? Under the First Amendment, whether it’s religious or secular, they’ve got a right to develop whatever public philosophy they want about education, don’t they?

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Mr. GEORGE. I thought that we were on the same wavelength as far as the applicability of the First Amendment to any private university, religiously affiliated or otherwise. Mr. RASKIN. Yes, but your position—— Mr. GEORGE. So we’re outside the realm of the First Amendment. We need to be talking about what makes for good education. So if I’m speaking to people at Notre Dame or at Liberty Univer- sity, I’m going to say, Don’t allow your university, even though it is religiously affiliated, to generate into catechism class. You need to make sure that competing points of view are heard. Mr. RASKIN. Well, that’s essentially what you’re saying to Yale and Wesleyan, too, right? Mr. GEORGE. —by your students. What’s that? Mr. RASKIN. How is it different from what you say to Yale or Wesleyan or Oberlin? Mr. GEORGE. Yeah, the difference is truth in advertising. So if you want to say we as—— Mr. RASKIN. But they all claim—the religious schools also claim to be supporting the pursuit of truth and diversity. They all say the exact same thing when you read—— Mr. GEORGE. They say something that Yale doesn’t say. Mr. RASKIN. Yeah. Mr. GEORGE. We are a Christian university, and the evangelical or Catholic or eastern Orthodox tradition, we guide our policies by the Biblical precepts. Mr. RASKIN. Yes, and Yale says it’s a school that’s interested in the liberal arts and the pursuit of liberal education. So they all—— Mr. GEORGE. Don’t you see the difference between the two? Mr. RASKIN. Both of them are expressing their First Amendment right to develop their own academic mission. Mr. Chairman, thank you for your indulgence. Mr. JORDAN. But now we’re going to move to the fine gentleman from Tennessee, Mr. Duncan. Mr. DUNCAN. Well, thank you, Mr. Chairman. Thank you for calling this important hearing. In the fall of or—I will tell you that this is a controversy that’s been going on for a very long time. In the fall of 1968, late Sep- tember of 1968, I returned to the campus of the University of Ten- nessee after working here in Washington in the Nixon for Presi- dent campaign. I had served the year before. I had written a weekly column. I was the token conservative columnist for the UT Daily Beacon. When I got back to campus, someone sent anonymously to me the minutes of the Issues Committee meeting. The Issues Com- mittee was the committee that controlled a huge amount of student activity fee money to invite speakers into the campus. They had a list of all the speakers they had invited that year. They had invited Angela Davis; Tom Hayden, Jane Fonda’s husband; Max Lerner; Julian Bond. About the most conservative speaker they invited was Hubert Humphrey. What really upset me, they had a section there that said ‘‘possible conservative speakers,’’ and they put a John Birch Society member and a Ku Klux Klan member. That was their idea of a conservative.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 68 So I wrote a column blasting that and listing 15 very respectable conservative speakers that they could have invited. I gave that to the editor of the Beacon, and he refused to print the column because he said my column was on national issues and that was a campus issue. So I went down to the morning daily newspaper in Knoxville, and I told the editor about that. And he said, well, he thought that was a column more for the campus, but he said he would take a look at it. I took it back up there the next day. He ran it on the front page of the Knoxville Journal, which was a football Saturday, and their circulation went up from about 80,000 to about 85,000 that day. The editor of the Beacon got so mad that I had done that, that he told me he was taking me off the SGA beat. I was majoring in jour- nalism, and that was considered the best beat. He was removing me as news editor, and he was cutting my column down to once every other week. I told him, No, you’re not, I said, because I quit. I was working for free anyway, so it didn’t hurt me to quit. I go down—I went down and told the editor of the morning paper what they had done. And they hired me to teach—or to—they hired me as a full-time reporter on the daily newspaper. So what the editor meant for bad turned out for me to be a good thing. But I tell that you because I have a column here by Dennis Prager which says, ‘‘Fear of the left, the most powerful positive force in America today. Conservatives are keeping quiet about their beliefs.’’ And he says the dominant force in America and many other western countries today is fear of the left. And so I sometimes—when I’m with conservative students, I hear conservative students say all the time that they really don’t feel they can express their true views because they will be—they will receive lower grades from most—from many of their professors who are unquestionably liberal. And then I hear liberals deny that that’s going on in the campuses. But when I think back to what happened to me because of that column I wrote, I can certainly understand the feeling of many of these students. But I’d like to hear your opinions, Mr. Langhofer. For instance, do you think that Dennis Prager is correct in this column that he wrote, that the dominant force in America and many other western communities today is fear of the left, or that that is a—that conservatives students do feel that they have to remain silent sometimes about their views? Mr. LANGHOFER. Well, we definitely have represented a number of students and student groups throughout the country, you know, West Coast, East Coast, Midwest, that—where students have been silenced because of their conservative viewpoints or because of their pro-life viewpoints. And I think a great example is we represent Young Americans for Freedom in Cal State LA when they tried to bring Ben Shapiro to speak at campus. And the university threw up all kinds of roadblocks. First they canceled the speech and then tried to charge security fees and then they basically allowed the professors and the students to block access simply because they disagreed with the views.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00074 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 69 And that’s a—this was a new group. There was only several students in the group, and they were trying to bring a different viewpoint. And I think that type of reaction where you have hundreds of students and faculty blocking the door saying that your views aren’t welcome, I definitely would say that that demonstrates to those conservative students that their views aren’t welcome there and that they’re second-class citizens at a university where they’re paying their tuition, just like everybody else. Mr. DUNCAN. I’m just about out of time, and I have to go preside over at the House, but I would be interested. Dr. Weinstein, what has been the reaction to what happened to you both on campus and off campus? Have any changes been made? Mr. WEINSTEIN. The campus has doubled down on every foolish idea it was pursuing and has gotten itself into very serious financial trouble for lack of students, which I should tell you I warned my colleagues that if they pursued this false equity proposal, that that would be the result. So a rather predictable disaster is occurring on campus. I do want to push back a little bit, though, on the assessment that it is the left, because really, it isn’t one left. There is an as- cendant orthodoxy on the left that is very troubling. It is quite broad, but I think not very deep. And there’s a concentrated mirror image of that on the far right. And both of these things are to be feared. The problem, though, is when you speak out on a college campus from a perspective on the left that does not fit this orthodoxy, you are immediately categorized as on the right, which makes it look that the left is monolithic and all shares this opinion, but it’s not the case. Mr. DUNCAN. All right. Thank you very much, Mr. Chairman. Mr. JORDAN. I thank the gentleman. The gentleman from North Carolina, Mr. Meadows, is recognized. Mr. MEADOWS. Thank you, Mr. Chairman, and thank each one of you for your testimony here today. And probably the most powerful witness for free speech is not you, the witnesses. It’s the audience, the young people that are here. And I applaud you for truly being here to stand for free speech on college campuses. Truly. Mr. Langhofer, can you, very shortly and succinctly, define what hate speech is? Mr. LANGHOFER. There is no definition. That’s the problem. It’s subjective. It’s in the eyes of the beholder. Mr. MEADOWS. Because we’ve had some of our colleagues talk about hate speech. So, Dr. George, can you define hate speech? What is hate speech? Mr. GEORGE. It’s meant to be speech that dehumanizes another person. In other words, attacks the person for some aspect of the person that’s irrelevant to the conversation rather than attacking ideas. Justice Scalia once put it, I think, very well. He said, ‘‘I don’t attack people. I attack ideas.’’ Mr. MEADOWS. Okay. So if we—so, Dr. Harper, you acted like you wanted to jump in there. Go ahead. Mr. HARPER. Sure.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00075 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 70 As I indicated in my written testimony, the USC Race and Eq- uity Center does campus climate studies all across the country. At every place we’ve been but one, black students there have been called ‘‘niggers.’’ That would be hate speech. Mr. MEADOWS. All right. So it’s going after the individual. So having a difference of opinion is not hate speech? Mr. HARPER. No. Mr. MEADOWS. All right. So when groups are defined as hate speech groups for having a difference of opinion, you would say, Dr. Harper, that that’s—that wouldn’t be accurate. Mr. HARPER. It depends on what the opinion is and the language that is used to—— Mr. MEADOWS. Well, if you and I have difference of opinion—— Mr. HARPER. That would not be hate speech? Mr. MEADOWS. For example, I do have a difference of opinion. I don’t think your students own the campus on which they go to school, because I think that the vast majority of them have taxpayer dollars that fund that, that, quite frankly, either are bor- rowed or granted or paid back at some point, so I don’t think that they own it. But we have a difference of opinion, and I will respect your opinion there. So do you believe that it’s okay on a public campus to limit where free speech can take place? Mr. HARPER. I do not. To be sure, as I said in both my oral and written testimony, I am a proponent of free speech and—— Mr. MEADOWS. I got 5 minutes. So I’m going to let you be free with your speech, but limited on your speech. How about that? All right. So as we look at that—so you would say, Dr. Harper, it is not okay to have free speech zones? Mr. HARPER. I am not a proponent of free speech zones. Mr. MEADOWS. Okay. So one of the interesting—you know, this— this particular—demonstrates the problem that we have on some college campuses. So here we have a free speech zone that’s about the size of a parking space. Mr. HARPER. I think that’s ridiculous. Mr. MEADOWS. Okay. So what size would be okay? Mr. HARPER. I actually think that the entire campus ought to be a place that is a marketplace for the contestation of ideas. And for—— Mr. MEADOWS. God bless you. I agree. I fully agree. And so if we can go there, and we know that we have this issue, how do you reconcile some of the limitations on free speech that we’ve seen on college campuses, and maybe even your college campus, as it relates to those that have a different opinion on what they should value? Now, I’m not talking about the kind of controversial speech that you and I both find abhorrent. I mean, it just—truly, the example you gave is certainly something that we can all condemn. But let’s take it into a different situation. Is it okay, in the United States of America, to espouse communism? Mr. HARPER. At a university, it is the responsibility of the edu- cators, the faculty members who work there, to complicate stu-

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00076 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 71 dents’ ideas and to make space for students to espouse communism—— Mr. MEADOWS. But I’m taking it out of a racial context, because I think the answer would be yes. I mean—Dr. George. Mr. GEORGE. Yes, Representative Meadows. I want to say that I am not favorable to communism, to say the least. Mr. MEADOWS. Just for the record. Mr. GEORGE. But I teach the works of Marx. I teach the works of Gramsci. And when I present my students with Marxist writers, I try to present them in their most powerful, positive, attractive sense, because I want students not to be able to shoot down a straw man. I want them to understand why these theories, which I find reprehensible, have real appeal to serious, intelligent people, and, in some places, still do. I think it’s our job—I agree with Dr. Harper. It’s our job to make sure that students hear the message to be said for all points of view, including those that we find reprehensible and, even in the case of Marxism, deadly. Mr. MEADOWS. Okay. And I’ll close—the chairman’s been gra- cious allowing me to go over. Here’s what I would ask each one of you to give this committee. I need, on a spectrum, when does speech become hate speech and should be limited? You know, we need to have a definition, because you know what, Mr. Langhofer? I happen to know that the South- ern Poverty Law Center would say that you espouse hate speech. And I disagree with that. I fundamentally disagree with that. And yet, at the same time, what we have to do is we have to understand that free speech must be protected, even at times when it is speech that we do not agree with, like communism. I’ll yield back. Mr. JORDAN. I appreciate the gentleman’s question and the ask of the witnesses. The gentlelady—sticking with North Carolina, the gentlelady from North Carolina is recognized for 5 minutes. Ms. FOXX. Thank you, Mr. Chairman. And I want to thank our witnesses for being here today. And I’ve invited some students in from Appalachian State University to hear the comments today. Dr. George, in your testimony, you call our attention to the threat posed to the integrity of our colleges and universities by those who refuse to entertain or listen to arguments that challenge their opinions. But you also share the good news that the situation at Princeton is not all bad. Could you elaborate on why that is? What particular policies are in place or actions has Princeton taken that encourage intellectual diversity on campus? And could other institutions of higher education replicate this approach? Mr. GEORGE. Well, thank you very much, Congresswoman. Let me just mention four things very quickly: First, we have a university administration at Princeton led by Christopher Eisgruber, who is, himself, a First Amendment scholar that is very sensitive to issues of free speech, supportive of issues of—supportive of free speech, and also concerned about the problem of a lack of viewpoint diversity. Our administration wants there to be,

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00077 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 72 on the faculty, as well as in the student body, a range of perspectives representing—represented so people will hear ideas from people who actually espouse those ideas. Secondly, we were the second university in the country, after the University of Chicago, to adopt of University of Chicago’s excellent free speech principles. These were the report of the Jeffrey Stone committee, which Mr. Raskin, I’m sure, will be familiar with. Third, the university was completely behind Cornel West and myself. And enthusiastically, when we proposed to teach together, they celebrated—they celebrated, and promoted the idea of two out- spoken people representing competing points of view getting into the classroom and teaching together. And I know Cornel and I both really appreciated the support the university gave. And then fourth, in the year 2000, we found that the James Madison program in American Ideals and Institutions, of which I have the honor to be the director, and it’s part of the mission of the—of the program to ensure that there is a wide variety of viewpoints represented. A fundamental problem we haven’t talked about today is the lack of voices on campus, especially in the faculty ranks or visiting speakers who represent views that are contrary to campus orthodoxies. Liberty University should be doing this. Notre Dame and Georgetown should be doing it too. But all universities should be doing it. Princeton needs to do more of it. Certainly Yale needs to do it. We talk about there were 5,000—I think that was the right figure, roughly—5,000 commencement speakers. How many of them were conservatives? How many conservatives were given honorary degrees, which is a way that universities hold up achievement to be modelled for their students? It’s one thing to not disinvite people, that’s great. But if people representing competing views against the dominant views are not being invited in the first place, I’m not going to celebrate too heavily that we’re not disinviting people. Ms. FOXX. Thank you, Dr. George. Mr. Langhofer, in your testimony, you describe how public universities across the country inappropriately limit student speech on campus. And my colleague from North Carolina showed that chart about constricting speech zones that limit free speech activities to a small area of campus. As you pointed out, there have been numerous incidents where students have been wrongfully prevented from sharing their viewpoints. Can you expand on why this type of policy is detrimental to the free exchange of ideas on campus? Can you give us some examples that—of universities that have remedied their unconstitutional speech zones and how they did so? Mr. LANGHOFER. Sure. I think, you know, all the speakers today have demonstrated why this is so harmful to tell students that they only have to speak in one area. First of all, it tells them that their public areas, the areas where they live, their views—they cannot speak without the government giving them permission. That’s the wrong message that we should be sending to our students. Our students should know

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 73 that we live in a free society, and that they’re free to share their views, and that others are free to refute those views if they disagree with it. So that’s a bad message. But it’s also a wrong message because the government almost always uses that with discretion to say your view shouldn’t be allowed. And so at Kennesaw State, where we—we also have another lawsuit against Kennesaw State regarding speech zones because they allowed certain people to speak outside the speech zone, and they put other people inside the speech zone. That’s what happens when you give unbridled discretion to university administrators. So I think it’s a problem because students are being taught that if they want to exercise their rights, they have to get permission first. And that’s the wrong message that we should be sending to our students. Ms. FOXX. Thank you, Mr. Chairman. I yield back. Mr. JORDAN. I thank the gentlelady. The gentleman from Michigan is recognized for 5 minutes. Mr. MITCHELL. Thank you, Mr. Chair. Dr. George, I’ll start with you, please. And you quoted Justice Scalia about hate speech, and I remember the section. But he also talks about the fact that hate speech is not unconstitutional; that, in fact, it is protected. Mr. GEORGE. Yes. Yeah. That is right. One of the things I find as I go around the country as a common law person, I share that with Mr. Raskin, is that many students, very well-educated students, high-achieving students, believe that there is an exception to the First Amendment guarantee of free speech for hate speech. And, of course, that’s not true. Mr. MITCHELL. Well, and I’m not an advocate of hate speech. Don’t get me wrong. The reality is is that—and, Dr. Harper, join us here, because what ultimately addressed some of the hate speech you referenced—I’ll leave out the word, but what ultimately addressed the fact that some terminology wasn’t acceptable? It was society, was it not? It wasn’t a bureaucrat, it wasn’t a college administrator. What addressed that wrong? Mr. HARPER. Absolutely. It was society and conversation, right, which is why I’m a proponent of conversation about these things on campus. Mr. MITCHELL. Okay. But hang in here with me. So the reality is, is rather than have institutions or groups of students yell down something they disagree with, even if they’re saying things that are vile, should it not be society as a whole, not segments of society that say You don’t get to speak here? Or, in fact, cause significant disruption and potential violence at the cost of having a speaker supersedes—they stop speech? Is that not wrong? Mr. HARPER. I mean, if we waited for society, I’m afraid that we will not get the kind of justice and humanity that students deserve on campus. Mr. MITCHELL. So it’s not society. We’ve got some group of higher people that are determining what’s right for everybody. Is that what you’re suggesting?

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Mr. HARPER. I’m suggesting that it is the responsibility of college presidents and university faculty members to create the conditions that allow students to understand why what is being said is problematic, and to complicate those ideas. Mr. MITCHELL. Let me share with you a story about college professors and administrators. Your patience, Mr. Chair. 1976, I was a student at Michigan State University. A college professor that disagreed with me, I disagreed with her position on pro-life versus pro-choice. Catholic. All of a sudden, my essay grades were considerably poorer, significantly poorer. In fact, I tu- tored for the college because my grades were so good. I appealed the grade. She was wrong by over 2 1/2 grades. They changed my grade, and my tests subsequent to that were subject to review for the college after that. She left that position. She became the dean of the honors college. You know what happened to me? I was called for review of whether or not I was entitled to honor status. And they withdrew my honors status. Why? Because I wouldn’t take anthropology of speech. Now, that was 1978. So when you say college administrators should make a determination, they are just as biased as society is. What? Because they have more education, somehow they are theoretically better people? Mr. HARPER. Mr. Mitchell, what you described in 1978 is a version of what I hear in 2018. The difference is, I hear it most often from students of color who suggest that there is not sufficient ideological diversity in the courses that they take. The overwhelming majority of the authors that are assigned to them—— Mr. MITCHELL. I have so much time. I have so much time. The reality is we’re not talking about diversity. We’re talking about punitive action. We’re not talking about—we’re talking about—Dr. Stanger, let me go to you real quickly, because you said, Well, if scholars are inviting guests, then they should have protection, and if they’re—who—and if they’re not scholars, they shouldn’t? Ms. STANGER. Just a correction. I said members of the faculty or a recognized student group, which covers just about everybody on campus. Mr. MITCHELL. I’m sorry. I took it as scholars, but maybe I misunderstood what you were saying. Ms. STANGER. Yeah. I think we have a little more weight than the students, but that’s okay if we—— Mr. MITCHELL. Dr. George, real quickly, in the few seconds I have left here. You made reference in talking about protests and people pro- testing someone else’s speech. You said something important there. You said ‘‘respectful.’’ Respectful disagreement. Is heckling down a speaker, is threatening violence, does that meet your definition of respectful? Mr. GEORGE. No, that’s not. It’s disrespectful. And it’s an unwillingness to engage. And that mean it’s an unwillingness to learn. Mr. MITCHELL. One more quick question for you, Dr. Harper.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 75 You made a comment that somehow you minimized 19 disinvitations of speakers last academic year. Is it acceptable to you to have 19 decisions on academic campuses that they won’t house a minority student with a nonminority student? Would that be acceptable to you? Would that be an acceptable standard? Mr. HARPER. As I suggested in my written and oral testimony, university administrators reserve the right to withdraw invitations to any speaker, including me. Mr. MITCHELL. That’s not answering my question. If a university administrator decides that they won’t house a student of color, they decide they’re not going to house them with Cau- casian students. The University of Michigan makes the decision. Is that acceptable 19 times at a university? Mr. HARPER. It’s not a question pertaining to freedom of speech on college campuses. Mr. MITCHELL. It’s a decision by university campuses. A violation of constitutional rights, right? Mr. HARPER. I don’t see how that is relevant to this particular conversation. Mr. MITCHELL. I’m sure you don’t. But it is relevant when 19 decisions to violate someone’s constitutional rights for free speech—— Mr. HARPER. It is not a constitutional violation when you are a guest who has entered into a contractual agreement with an institution that makes clear in the contract that they reserve the right to rescind or withdraw the invitation. Mr. MITCHELL. One more comment, Mr. Chair. The university is not the final arbiter, because it’s the taxpayers. It’s the people that are paying to have that university there in con- trast to the comments you made earlier about it being their university, it’s the public’s university, or it’s the private university, the endowment of people paying for it. With all due respect, they aren’t the decision maker of that. Mr. HARPER. I did not suggest in my testimony that they get the final decision. But they absolutely get a say. And they get to say that they don’t want this person on their campus. They do get to protest. They, too, have freedom of speech. Mr. MITCHELL. Well, there’s a line in the protest, I think we can agree, that’s been crossed more than once. Thank you. I yield back. Mr. JORDAN. I thank the gentleman. Mr. Langhofer, how close can a safe space be to a free speech zone on a college campus? Mr. LANGHOFER. I think—I don’t know that I’ve ever answered that question. Mr. JORDAN. Can they be the same exact location? So could you take what Mr.—Congressman Meadows had up there, I think it was a free speech zone. Could you overlay a safe space on that? Could that actually work? Mr. LANGHOFER. I think you could. Mr. JORDAN. Or is it like—I remember—I think they’re called Venn diagrams. You know what I’m talking about? Like some—like a circle here and a circle there, but there’s a little bit of overlap. Venn diagram.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00081 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 76 Okay. So could it be a Venn diagram, Mr. Langhofer? Can that happen on a college campus? Mr. LANGHOFER. I think that you could overlap a safe space with a speech zone. But, unfortunately, you know, speech zones—obviously, we believe that they’re unconstitutional everywhere, and public universities. Mr. JORDAN. Dr. George, can you exercise free speech in a safe space? Mr. GEORGE. I don’t even know what those things mean. Mr. JORDAN. And isn’t that the point? Isn’t that the point? Mr. GEORGE. Yeah. I mean, what we need to get the focus on is learning, learning, learning. Mr. JORDAN. Yes. Mr. GEORGE. What—the reason we need free speech on campus is that—so the mission of the college or university can be pros- ecuted. Students can learn. Scholars can advance the cause of truth-seeking. And when we shut each other down, when we restrict speech, when we don’t listen to a particular point of view, when all the speakers are on one side or the other, it doesn’t matter whether it’s the left or the right, you know what is lost is learning, knowledge, truth-seeking. That’s what it’s all about. That’s what we keep our focus on. Mr. JORDAN. Exactly. Dr. Weinstein, what happened in your classroom, which I’ve seen videos of, was that—was your classroom that day a safe space or a free speech zone or neither? Mr. WEINSTEIN. Thank you for asking me that question. Free—a safe space—— Mr. JORDAN. It didn’t look like it was safe to me. Mr. WEINSTEIN. Well, I believe in something that could be called a safe space. But what ‘‘safe space’’ means to me as an educator is a space enough to take risks, which is roughly the opposite meaning of what is being invoked on college campuses. The answer to your question is that a free speech zone cannot coexist with a safe space, because a safe space, by definition, according to this orthodoxy, is a place where you are free from being offended. So it cannot—it is mutually exclusive. But if you’d allow me to, I feel that there’s—— Mr. JORDAN. In a safe space, could you say this sentence? Could you say ‘‘Donald Trump is President of the United States’’? Could you say that in a safe space on college campuses today? Mr. WEINSTEIN. Well, it depends which version of safe space you mean. If you mean a safe space the way it is used in common par- lance on college campuses today, then the question of whether or not you can say it is contingent on whether or not somebody will be offended by that observation. Mr. JORDAN. Now, think about that. You can’t even state a fact, a fact. Provable, right? I saw his tweet this morning. It’s provable. He’s the President, right? Mr. WEINSTEIN. Mr. Chairman—— Mr. JORDAN. You cannot do that. This shows the absurdity of what is going on on campuses, and you have lived it in a physical way. Dr. Stanger has lived it in a physical way. This is what is scary.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00082 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 77 Dr. Stanger is raising her hand. Mr. Weinstein, you have the floor, so you’d have to yield time to her. Ms. STANGER. You don’t have to. Mr. WEINSTEIN. Okay. I think this is important enough to warrant a minute or two. We are continuing in this hearing to run up against the blunt- ness of the tool that we have at our disposal for discussing the issue at hand. So there is an importance to what takes place on a college campus. Free expression is a key feature of what takes place on college campuses that makes civilization function. But the application of the First Amendment to that free expression is almost arbitrary. Does it matter more that something takes place at Evergreen, which happens to be public, than if it takes place at Harvard, which happens to be private? Do those distinctions even make any sense when, fully, 80 percent of the funding that drives Evergreen is private tuition money and—I don’t know what fraction, but a very large fraction of what drives Harvard is NIH and NSF money? So these distinctions are arbitrary. And what we should be protecting is the ability to exchange ideas in a way that actually allows education. It is also true that when people self-censor because they’re afraid of stigma, they may never get around to the place where somebody blocks their speech. And so, there may be no technical violation, but, nonetheless, the effect is exactly the same. There is also a problem in the sense that the conflict is really between members of the audience. One section of the audience is de- ciding what other members of the audience can listen to. The person’s speech who is inhibited is almost beside the point. It’s a question of whether you can choose what you want to entertain as a concept. And then when this jumps the fence and leaves the college campuses and moves into the outer world, we’re going to run into an even bigger problem where the tech sector is now the de facto governance apparatus for the new public square. And it’s private. The First Amendment doesn’t apply. Mr. JORDAN. Dr. Harper, are bias response team members identifiable on campus? Mr. HARPER. They are. Their names are usually made public. Mr. JORDAN. Well, no. Do they have a badge? Do they have a special hat they wear, or what? Mr. HARPER. No, they don’t wear badges or hats, but they are publicly—— Mr. JORDAN. Bias response team members on a university campus, are they experts in the First Amendment? Mr. HARPER. They usually are not. They are citizens of the community who—— Mr. JORDAN. Does that concern you? Mr. HARPER. —very much exercise and look into and carry out due process. Mr. JORDAN. The people who are policing free speech on college campuses may not be identifiable and they’re not experts on the First Amendment, but they’re allowed to police free speech on— they’re allowed to police speech on a college campus?

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Mr. HARPER. That’s not the role of a bias response team. I made clear in my written testimony that bias response teams ensure due process instead of administrators relying on anecdotes or very little information to punish people who have been accused of wrongdoing. They, instead, empower a team of investigators to collect evidence. It’s no different than a corporation having a group of people look into claims of sexual harassment or racial—— Mr. JORDAN. Oh, it’s a lot different. It’s a lot different. Corpora- tions aren’t government institutions. We’re talking about a lot of government—it’s a lot different. But let me ask one another question, because I’m over time, and I know the gentlelady from New York is itching to go here. So, Dr. Harper, is Ben Shapiro a scholar or entertainer? Mr. HARPER. I’ve never met Ben Shapiro. Mr. JORDAN. No. I’m asking. Is he a scholar or entertainer? You made a distinction in your opening statement about entertainers shouldn’t necessarily have the same kind of privileges on college campuses—— Mr. HARPER. I did not say that. Mr. JORDAN. And I’m asking. Mr. HARPER. You heard that, but I never said that. Mr. JORDAN. Okay. Well, then, just go to my question, then. I think you did, but we won’t don’t debate that now. Answer the question. Is Ben Shapiro a scholar or entertainer? Mr. HARPER. I don’t know Ben Shapiro. Mr. JORDAN. You don’t know Ben Shapiro, the guy that’s had the heckler’s veto used against him—— Mr. HARPER. I don’t know him personally. Mr. JORDAN. —more campuses last year than any other speaker, and you don’t know him? Mr. HARPER. I don’t know him personally. Mr. JORDAN. Really? Mr. HARPER. I do not know him personally. Mr. JORDAN. Really? Mr. HARPER. I’ve never met Ben Shapiro. Mr. JORDAN. Mr. Langhofer, let—I’ve—whether you met him or not, I understand you know of Ben Shapiro. Mr. Langhofer, do you know who Ben Shapiro is? Mr. LANGHOFER. I do. Mr. JORDAN. Yeah. Dr. Weinstein, do you know? Mr. WEINSTEIN. He’s a friend. Mr. JORDAN. Yeah. Dr. Stanger, do you know? Ms. STANGER. I know the name, but I’ve never read him. Mr. JORDAN. Okay. Ms. STANGER. So I couldn’t pass judgement. Mr. JORDAN. Okay. Dr. George, do you know who Ben Shapiro is? Mr. GEORGE. I know the name, and I’ve read some of his writings, but I don’t know him personally. Mr. HARPER. Yeah. That’s what I said.

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Mr. JORDAN. Okay. Well, it wasn’t quite what you said, but we’ll let it go. The gentlelady from New York is recognized. Ms. STEFANIK. Thank you, Mr. Chairman. Thank you to all of our panelists who are here today discussing this important topic. I’m the first person in my immediate family to graduate from college, and I can personally speak to the importance of being exposed to diverse viewpoints on campus. Intellectual rigor, challenging and respectful discourse, and the experience of grappling with complex issues was integral to my personal college experience. Higher ed institutions not only open students up to new ideas, but also play a pivotal role in informing the national discourse and protecting the exercise of free thought, speech, and assembly. And I believe that measures that deprive students of their ability to disagree erodes the quality of the many important debates that should be happening on our college campuses right now. And there are many examples of these restrictive policies on campuses across the country. Many of you have mentioned the example at the University of Michigan regarding perceived bias. Another problematic policy that I’m familiar with, because it’s happening at my alma mater, at Harvard University, they recently decided to penalize students who join single sex organizations. I’m a graduate of an all-girls school K–12, and that was forma- tive in me feeling the confidence of running for office. So I do see the value of single sex organizations. I believe both of these examples, the University of Michigan and Harvard, illustrate poor administrative decision-making that has ultimately harmed students and established an environment that discourages debate, the free exchange of ideas, and the freedom of assembly. We are working on higher ed reauthorization. And I think it’s important to keep in mind that both public and private institutions rely significantly on Federal funds. How can we ensure that our constitutional liberties of young students attending these higher ed institutions are protected, because it’s the Federal dollar that is underpinning the support, whether it’s a Harvard, a private institution, or whether it’s a SUNY, a public institution in my State. I’ll start with you. Mr. LANGHOFER. I appreciate that. That’s an important topic. As we talked about a little bit earlier, the First Amendment—we’ve been talking primarily about students and how it protects the students’ right to speak. But the fact is, the First Amendment also protects private universities and their right to carry out the education in the way that they choose to carry it out. And I think Professor George pointed it out most importantly. The problem we have is, in universities, when they advertise themselves as some—as an institution seeking truth, but they’re actually promoting social justice over the truth-seeking. And so, when we’re talking about Congress allocating dollars, it absolutely has the right to say, public universities, if you’re taking our tax dollars, you are bound by the First Amendment. You must have policies which are consistent with the First Amendment.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00085 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 80 But when we’re talking about private universities, they also have the right to carry out their education, maybe if—as it’s dictated by their religious beliefs. As long as they advertise themselves as that and they hold themselves out as that, then they’re not violating the First Amendment. And I don’t think Congress has same duty to oversee that because, it’s not—it’s not a public institution. Ms. STEFANIK. But they’re still relying on significant Federal funds. Take the example of Harvard, which you talked about, Dr. Longhofer, whether it’s DOD funds, whether it’s NIH funds, or whether it’s program funding. There are so many Federal dollars that underpin the way Harvard functions and their budget on an annual basis. Mr. LANGHOFER. And I think I—the example that you pointed out earlier about single sex institutions, there are some people who would believe that that’s a violation of law, that we shouldn’t be doing that. And so, they might say that the single sex institutions shouldn’t be getting a—any Federal dollars. But there are—— Ms. STEFANIK. So those single sex institutions are actually not affiliated with Harvard. They are completely outside organizations. And the fact that the university can penalize students because they join an outside organization, zero affiliation with Harvard, they’re not allowed to be sports captains, they’re not allowed to be considered for fellowships. And I think that is a significant overstep of the university’s role. I wanted to give other panelists an opportunity to respond. Dr. Weinstein. Mr. WEINSTEIN. Well, the first thing to say is I’m not a legal expert, but I would certainly support the idea that leverage generated by the funding that is given by the Federal Government would— morally—it would morally be justified to use that to make sure that college campuses protect the free expression. But I would also point out that this is not just a matter of ab- stract ideas presented by speakers on campus. This is now extend- ing into the classroom, and it’s a question of what one can properly teach in a biology class, for example, which may well not be politically correct, but is, nonetheless, necessary for students to understand the organism that they’re studying. So ultimately, this is going to manifest in our competitiveness as a Nation. If we decide that there are certain things that are true in science that can’t be stated in a college classroom, then our students will be undereducated relative to any Nation that can solve that problem. So this is really a critical issue, and the use of those funds to keep the campus square open is entirely valid, in my opinion. Ms. STEFANIK. Dr. Stanger. I hope I get some flexibility on the time. Thank you. Ms. STANGER. Just very quickly. I’d like to take us back to learning, and perhaps paint a rosier picture than what’s emerging here, because in my classroom, nobody is self-censoring, because I make it absolutely clear that it’s of the utmost importance for learning that people be able to speak freely and make mistakes and maybe even offend someone.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00086 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 81 So I have the ground rule of, I just say it to them at the begin- ning. We’re going to—I don’t want you to self-censor. Please speak. If you offend someone, I’m going to ask you to apologize. If you don’t understand why, the person’s going to explain to you. And then we’re going to shake hands and move on. So there is zero daylight between my view of what you allow in a classroom and Professor George’s. So maybe that’s a barometer one could use. You can ask students. You can ask faculty. Are you self-censoring because of outside bodies? And if there’s a lot of self- censorship, I think that’s saying something very negative about the learning environment. Ms. STEFANIK. Dr. Harper. Mr. HARPER. This sounds just like my classroom. It might surprise some people here that I actually invite ideological diversity, the contestation of ideas, because I am a firm believer that that is what a university should be. It should not be a place where everyone is comfortable. What I think is the necessary complication here, though, is that when people of color say that we want our voices also included in the curriculum, and that we have a high expectation that you are going to engage perspectives beyond those that you were taught through your Eurocentric prism of the curriculum, that that’s where professors push back and don’t want to create inclusive environments, right? Like I think that we—I think there’s an opportunity and a responsibility for both things to occur. Ms. STEFANIK. Dr. George. Mr. GEORGE. Yes. I was very glad when Professor In-Exile Weinstein raised the issue of self-censorship, because it’s a very, very serious problem on our college campuses. And kudos to those professors like Allison Stanger and Dr. Harper who make it a point of encouraging students to express what’s really on their mind and to explore lines of argument, whether or not they themselves happen to agree with it, that push back against whatever the orthodoxy is in the room. It’s really critical to the learning process. So I think Congress and State legislatures can do a service by keeping a spotlight on the problem. Have students come in to talk about their experiences, experiences that are too often like what Mr. Mitchell experienced back in 1978. Put university presidents on the spot. Ask them what they’re doing about the problem of self- censorship on campus. And if they deny that there is self-censorship, or there is a problem, give them the kind of grilling that I’ve seen going on here today, or even more intense a grilling. Make them fess up to the problems so that we can all acknowledge it and start to do something about it. It is a very serious problem. And I’ll just conclude by saying let’s also take note that the problem is even more intense when it comes to women and people of color who dissent from views that people think they are supposed to hold because of their sex or because of their race or because of their ethnicity. We should never accept that. You are not required to be progressive because you’re black, or female, or conservative because you’re of European ancestry. We need to banish those ideas. The—we need to encourage, especially our female students and our students of color, to speak their minds, even when they’re

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00087 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 82 going to surprise people, because, Gee, we didn’t think people of your sex or people of your race thought like that. Ms. STEFANIK. I understand that. I mean, I am a millennial woman, New Yorker, who is a Republican, so I understand that very much. I want to point out one positive example. I do think we should praise institutions that are handling this correctly. The University of Chicago, the letter from the dean of students to the class of 2020 I think highlights what our higher ed institutions should be doing when it comes to respecting intellectual diversity, and really encouraging young people to challenge their viewpoints and pursue lifelong learning. Thank you for the flexibility. Mr. JORDAN. Let the record show that the gentlelady from New York got 5 additional minutes. And she’s not on the committee, but we appreciate that. And it was a good exchange. Thank you. Now, the professor, the second professor, the gentleman from Virginia is recognized for 5, give or take a minute or two, minutes. Mr. BRAT. I’m going to take two. Good. Thank you all. Students, you got your pencils ready to roll here? Get ready to take a little note here. I—first of all, I applaud—I love the comments here, and it’s all great, and these professors are great. And me and Jamie up there, the Democrat on the other side, we had an exchange at American University. We go back and forth. And you’re all charming and it’s all great. But you haven’t discussed the empirics of the faculty as a matter—and the basic volume of the ideas we’re talking about. It would great if we pursued truth. But I think, as all of you know, truth has been under attack in every brown bag philosophy lunch at Yale, Harvard, Princeton, whatever, for about 20, 30 years, right? Logical positivism, blah, blah, blah. So I’ll just give the students a little mini course here, right? So I taught religion and ethics and justice and economics for 20 years. And we had a scholar at Virginia, Pat Werhane. She wrote a book on business ethics, so this would get Dr. Harper in here in the business section here. Business ethics, and in that book, and this has to do flyover country right now. You got the coastal elites, right? Then you got all the normal people in the middle, or something like that. That’s a joke. I’m on tape. And so in that ethics book, which is fairly representative of every business ethics book across the country, they have ethics. And the three schools of thought you will guaranteed learn in ethics is Aris- totle. I heard a little flourishing language out of Stanger here, so she’s probably in that camp. I shouldn’t have led my witness. And then—so that virtue theories, Aristotle and all that kind of stuff, right? And then you got Conti in ethics, the great German ethicist. And you’re all Contians whether you know it or not. And then you got the utilitarians, et cetera, Mill and Bentham and all this kind of thing, right? So I go around to all my rotary clubs. And everybody—I give bor- ing ethics talks and ask everybody. I say, How many of you live

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00088 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 83 out the Aristotelian virtue ethics? Nobody. How many of you young people are Contians? No. So you all must be Utilitarians. You all follow Mill, Bentham. No. So these are the three schools of thought we teach in ethics. We don’t teach religion anymore at all. Philosophy as a system of thought is gone. And the ethics is kind of—is all we got left hang- ing. So now raise your hand if you can answer this question. How many of you are either Christian or Jewish or Muslim or Confucius or Buddist or—et cetera, whatever I didn’t—raise your hand if you’re one of them. Oh. How many of you base your life and ethics on a little of that. Yeah, that’s what I thought. So that’s what you call in another setting a monopoly or something, right? I mean, so what I’m getting at is the bias on faculties, and the little hidden secret that I—members of this panel don’t know, is guess who hires faculty? Faculty in the department. So if you already have a bunch of ’60s liberals, who I like, right, they used to be classical liberals. I’m a classical liberal, right? You know, James Madison, Adam Smith, all these radical thinkers. These are considered radicals these days, right? So I’m a classic—but now the left is in full charge, and they’re hiring, guess—what could go wrong if you have the left hiring the left, and that’s what’s going on. And so, Dr. Stanger, I appreciate your aspiration that we move— I don’t think it is right either, theoretically, to go 50/50. Our goal shouldn’t be, like, well, let’s have 50 percent conservative thoughts, and 50 percent liberal, right? Ms. STANGER. Right. Mr. BRAT. But what’s missing—and, you know, Dr. Harper is kind of getting at this is the diversity and all this kind of thing. Well, I mean, you had the Greeks and the Romans and Augustine of Hippos from Northern Africa. I mean, it’s not like the liberal arts canon was a bunch of Europeans altogether, right? And so my challenge for the panel here is, you all talked about truth. But what is truth, right? You all talk about rationality. Whose rationality, right? And, students, you might want to take a note on that. Alasdair MacIntyre. You got a brief history of that? You all know this guy? Good. I see some nods. Very good. Right? He’s got books. Whose justice? Which rationality? That is the question, right? And so I’m entirely—Dr. Stanger, I’m glad you want to get optimistic. I’m more like Calvin and Hobbes here. But we need to get out of this monopoly. And if you’ve got any ideas, that’s what we’re struggling with. And if you look at political donations and all this kind—the evidence is clearly. I can make the case. I’m not going to go there, because it’ll just get all the tempers up. But we got to get back to truth. What is truth, what is justice. And it should be embedded in a body of knowledge, right? Not just faculty people who are charming fellows and women who can daz- zle students who are 18 years old, but there should be a body of knowledge. And so I’ll just—Dr. Stanger and then Dr. George, I’ll go to.

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Ms. STANGER. I completely agree with you. And I’m going to give you an Aristotelian answer. Mr. BRAT. Oh, I figured. That’s good. And I’m with you on that. That’s good. Ms. STANGER. You left out one word, excellence. I have a brighter story for you from Middlebury College political science department. It may surprise you—— Mr. BRAT. Good. Ms. STANGER. —that by using the standard of excellence in hiring the smartest people, regardless of what they look like, what their religion might be, we wound up with one of the most diverse departments on the faculty. And I think it’s unfair to—and I understand why you have that perception. I just don’t think hiring is taking place in those ways, at least in my department. Now, we may hear of some other horror stories, but that’s my perspective. But excellence. Keep that in mind. Mr. BRAT. Well, I’m a conservative Calvinist economist. And I grant you, as I traveled around the country and gave papers and whatever, I wasn’t in the majority. So it might be shocking. Dr. George, any color commentary? Mr. GEORGE. Yes. Again, we have to acknowledge the problem before we can do anything about the problem. And, frankly, the imbalance—ideological imbalance in the academy when you take the whole country—now, there are some exceptions. There are conservative religious schools like the handful that Jamie Raskin talked about. But if you take the country as a whole, there is an unbeliev- able imbalance in the professoriate ideologically. And that does create a problem. And we’re going to have to do something about it. Now, there are two bases for that. The less important, or less significant one, is self-conscious discrimination. I think most faculty members who participate in hiring other faculty could pass a lie detector test or swear on the Bible, or Darwin, or whatever they want to swear on, that they were being fair. They were just seeking excellence. What that shows is, that in a lot of cases, human nature being what it is, and it’s not a progressive or left problem. It’s a human nature problem. There’s a—they don’t see that they’re being bias. They have trouble, we all do, recognizing excellence in work that reaches conclusions we don’t like. So we have to eliminate the open bias. And there’s too much of that, no question about it. But even more fundamentally, we have to deal with the subconscious bias. Just one more quick point. I have always prided myself on being the kind of professor who can advocate a view that I don’t share for my students very effectively so that they can feel the force I of it. I always prided myself on that. And I was reinforced by my students on student evalua- tions who commended me for doing that. It was only when I began teaching with Cornel West. We’re in the classroom together that I realized I wasn’t nearly as good at it as I needed to be. And that’s because on occasion upon occasion, when we would talk about a controversial issue, Cornel, defending the progressive point of view, would come up with an argument or a thought that simply would not have occurred to me. A really

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00090 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 85 challenging argument or thought, better than I could have come up. And Cornel says he’s had the same experience working with me. He too, in his classroom, tries to really make his students confront powerful conservative positions from Burke, or Adam Smith or any of the great conservative thinkers. But in his experience with me, he’s noticed that, sometimes, I will say things that didn’t occur to him in defense of the conservative view, and the students actually get a better representation of the conservative view. So there is an advantage in having true viewpoint diversity, people who actually believe what they’re saying on campus advocating different points of view. Mr. BRAT. Great. Thank you, Mr. Chairman. Mr. PALMER. [Presiding.] The chair now recognizes Mr. Raskin for a second round. Mr. JORDAN. Mr. Chairman, just for one second. Mr. PALMER. Oh, I apologize. The chair recognizes Chairman Jordan. Mr. JORDAN. I got—Mr. Meadows and I have to run to a meeting. I want to thank our witnesses. Great panel, a great discussion. I wish we could do this all day, but, unfortunately, Mr. Meadows and I have to get to another meeting. And Mr. Palmer will close our hearing after a few more questions. Thank you all very much. Mr. PALMER. I now recognize—the chairman now recognizes the ranking member, Mr. Raskin. Mr. RASKIN. Thank you, Chairman Jordan and thank you Chair- man Palmer. And—so I wanted to try to clean up some loose ends here to see if we really could find some good consensus going forward. First, Dr. George, I want to start with you. One little point that occurs to me after you just spoke. I’m not quite sure why you would describe Adam Smith as a conservative as opposed to a liberal. He, of course, was a great liberal economist and philosopher. But you can take a shot at that in the course of answering this. Those people who consider themselves on the left, as Dr. Weinstein puts it, who are going to meetings and just shouting people down are not only portraying the great principle of the freedom of speech and discourse and debate that liberalism has thrived on. But they’re also, I think, mutilating the great old-fashioned art of American heckling. Now, I just reread the Lincoln-Douglas debates. And if you read, at least I think it’s the Hofstadter version, you’ll see the interlineated, lots of heckles that come from the audience, but they’re not meant to drown out Stephen Douglas or Abe Lincoln. They’re meant to really advance the dialectics of the discussion. And you that the Presidential candidates respond to them, and they integrated, and nobody’s trying to suspend the people or expel them for having done that. So is there some way of reviving the delicate and subtle art of heckling where people can actually yell something out? I mean, somebody did it on the floor of the House. I wasn’t a member then. They yelled at President Obama ‘‘You lie,’’ which was not particu-

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00091 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 86 larly artful or subtle. But he wasn’t expelled for it. He wasn’t kicked out of the institution or censured for it. Now, if he had con- tinued, I think he probably should have been. I’m sorry? So just—if you have any quick thoughts on that. Mr. GEORGE. Well, my favorite episode during the Lincoln-Doug- las debates was when someone called out to the audience, ‘‘Lincoln, give us something other than Dred Scott,’’ because Lincoln had been going on and on and on about the Dred Scott case. And Lin- coln fired back quick as a cat, ‘‘Yeah. You want something else? Be- cause Dred Scott hurts too much.’’ And that’s, I think, exactly the kind of thing that you want—— Mr. RASKIN. That’s the doctrine. Mr. GEORGE. —that you had in mind. Mr. RASKIN. Well, you guys should teach about heckling when you do your rhetoric classes, because there’s a good way to do it and there’s a stupid, infantile, juvenile way to do it. Mr. GEORGE. Very quickly on Adam Smith. I think you raise an important point, and I think Congressman Brat was pushing up this alley. Mr. RASKIN. Please make it fast, because I’m running out of time. Mr. GEORGE. Oh, yeah. Very quickly. So American conservatives are not the blood and soil and throne and altar conservatives of old Europe. American conservatives are actually old-fashioned liberals. They’re classical liberals in the tradition of Smith, Madison. Mr. RASKIN. Okay. So we’re together on that. Smith was a liberal. Okay. So, now, look, we—I think everybody here is agreeing that the First Amendment should apply in full force in a robust way on public campuses. Everybody seems to agree. Dr. Harper, do you have to go? I’m going to ask you this one, and then you’ve got to go, I understand, to the airport, so let me start with you. Some of you seem to agree that either, as a matter of law, or more likely, as public policy or politics or common sense that it should apply to private colleges and universities as well. Now, a couple of people have said, well, except for ones that want to identify religiously or to a certain percentage of religiosity. It shouldn’t apply to them. And there, any manner of political correctness goes, bans on interracial dating, bans on profanity, bans on pro-choice groups, bans on groups that are politically incorrect from a right wing perspective. I’m not sure I get the logic of that especially after what Congressman Brat just said. He’s from Virginia. It reminded me, Thomas Jefferson thought that the whole point of education was to break from religion in the church. He said explic- itly, when they created the University of Virginia, there could be no school of divinity. And he thought at least at that point in our history, that theology and religious dogma were at war with reason and science. Okay. But do you agree that we shouldn’t care about freedom of speech on self-defined religious campuses? Mr. HARPER. I think we should care about freedom of speech on every campus, including the religiously affiliated ones that you’ve

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00092 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 87 named, because they will produce college graduates who will go into the world. And my perspective is that we ought not graduate racists, sexists, homophobes, and so on. And when we don’t create space for the meaningful exchange of ideas, despite our religious differences, that is the outcome. Mr. RASKIN. So if Georgetown disallows the pro-choice group to organize, if Catholic University said no pro-choice speakers on campus, that’s something that should be a matter of public concern because those are great universities? Mr. HARPER. Absolutely. Mr. RASKIN. Okay. Let me just ask this, finally. A lot of people have converged around the University of Chicago principles, which really is a pretty excellent and exquisite statement of speech and toleration on campus. Is there a way to get people together across lines of public, private, religious, secular, to come together on principles that would bind us all together in terms of the some of the tougher issues? Dr.Weinstein, what do you think? Mr. PALMER. If the gentleman would yield? Mr. RASKIN. Yeah. Mr. PALMER. Out of respect for Dr. Harper. I understand that Dr.Harper has a flight to catch. And so without objection, we will allow you to leave the panel. If you get to the airport and it is de- layed 2 hours, call us and we’ll have you back. Mr. HARPER. Thank you. Mr. MITCHELL. Mr. Chair? Mr. PALMER. Thank you for your testimony. Mr. MITCHELL. Dr.Harper, before you—if I can? Mr. PALMER. Well, the ranking member has—— Mr. MITCHELL. Would Mr. Raskin yield for one question of Dr. Harper? Mr. RASKIN. Sure. Question within a question. Mr. MITCHELL. It is short. And I’m going to ask all of the panels to get to it. I agree the First Amendment is an incredibly blunt instrument. This was my preference to deal with this issue to get to diversity of thought. It is unfortunately, legally, the only one we have, but the question I have for you is, how do we get to that standard of diversity thought and expression? And I know you have to leave, so I’ll stop. I’m going to ask everybody else later, but I just wanted to catch you before you left, sir. Mr. HARPER. I think we have to do a better job of preparing college faculty members and administrators to facilitate that, and to create the conditions that allow for the thoughtful exchange of ideas. The truth is, and it’s higher education’s dirty little secret, that very few faculty members in their Ph.D programs learn how to teach well, period, right, or at all. It does not surprise me, then, that so few of us know how to responsibly create conditions in classrooms that allow for the contestation of ideas. I think that in that way, regents and trustees and others have to do a better job of equipping faculty members and administrators with the things that we never really got anywhere else in our educational upbringing around these issues. Mr. MITCHELL. Thank you, Dr.Harper. Thank you.

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Mr. PALMER. Dr.Harper, thank you for your testimony. You may be dismissed. Mr. HARPER. Okay. Mr. PALMER. And Mr. Raskin controls the time. Mr. RASKIN. Mr. Chairman, thank you. I’m just going to reformu- late my final question. And I’m going to make it focus on this sticky and interesting question of disinvitation. There’s an article in The Weekly Standard I found written by a conservative Repub- lican student at UCLA named Mariela Muro called, ‘‘I Helped Get Milo Yiannopoulos Disinvited From UCLA, and Here is Why.’’ And I guess there are different voices, some saying because of racism, some say because of sexism, some says because he had advocated sex between men and boys, he had advocated child moles- tation. But he had certainly been invited, and there was a disinvitation. And I think that the ethics of that, the politics of that, the legality of it is complicated. And you know, the Chicago statement is great from the standpoint of general principles. But in terms of dealing with these really sticky problems, what happens if a hate group says they want to come March on your campus the way they did at UVA on that Friday night in August of 2017. What do you do? So I’m just wondering, is there some effort within academia to tackle the hard problems and come up with an agreed-upon way of dealing with them so this isn’t always the cause for polarization and division? Mr. LANGHOFER. I would like to just address that very quickly. I think there’s a distinction that we need to make between when a college invites a speaker and when a student group invites a speaker. And most of the things that we’re talking, the disinvitations relate to when a student group invites a speaker. When they invite a speaker, that’s their speech, and they cannot be denied that speaker. Mr. RASKIN. I got you. My question is, now, at this point, late in the game is about the process. What can we do so we’re not having these ridiculous PC controversies for the rest of our lives so we can really try to work out some good ground rules? Yes, Dr.Weinstein. Mr. WEINSTEIN. There’s a natural tension between the duty of a college or university to curate the content so that the students are encountering things that enrich them and its duty to guard freedom of expression. And I think we just should be honest about the fact that that tension exists. I mean, peer review does shut down viewpoints that aren’t deemed of a high quality and that we don’t commonly take that to be an infringement of free speech. As to your question about the effect of something like the Univer- sity of Chicago letter, I must say that there’s a paradox here for those who espouse a libertarian economic perspective, which is, the Chicago letter would seem to protect freedom of expression better than any other campus in the Nation that I’m aware of. That, presumably, will give students who go there a competitive edge, because they will have been exposed to challenging ideas and will have sharpened their toolkit in response.

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00094 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 89 And so, why is that letter not spreading? Why are college campuses not falling all over themselves to embrace this in order to collect those students who are looking for a college campus that will expose them to the highest quality material available? So I don’t know the answer to that question, but I do find it interesting that Chicago was able to articulate these things and sur- vive it, and other colleges have not embraced the same principles. Mr. RASKIN. And Dr.Stanger? Ms. STANGER. Yeah, in my particular instance, I think I would not have been injured as I was if students had not invited in an outside menacing and hateful group the AntiFa group from—I don’t know what their name is, but it was an AntiFa group from Bur- lington. So we could say that students have the right to invite speakers, but if they’re going to invite menacing and hateful groups like the AntiFa extreme left, or like people with torches on the UVA campus, then they should be seriously disciplined. That would be my solution. Mr. RASKIN. All right. Mr. Chairman, thank you very much. Mr. PALMER. I thank the gentleman. The chair recognizes the gentleman from Michigan, Mr. Mitchell. Mr. MITCHELL. Just one quick question. And I appreciate everyone. This is one of the best hearings that I think I’ve been involved in in a year and-a-half in Congress. It truly has. It’s been a great discussion. I would ask you the same question I asked Dr.Harper before he had to leave for his flight. I agree the First Amendment is an incredibly blunt tool to assess what you’re trying to achieve at the college campus. The question is how we get to a tool that we can, as you look at it. Is it government entities? Is it funding entities? Are we achieving a diversity of thought and expression that is broad and inclusive enough to accept conflict and things we don’t like to hear beyond the First Amendment? How do we do that or evaluate that or assess that as we look at these things? Otherwise, we end up in a very blunt PC discussion, or we end up in a First Amendment and hope there’s some value, something from Scalia, right? How do we do that? Dr.Langhofer. I’m sorry. Mr. LANGHOFER. I think it starts with the leadership down. Many of these colleges that we’ve seen where there have been riots happen, where there’s been violence, they have policies which out- law that type of activity. And if the universities would simply enforce the policies that are on the books and say, Look, you can’t block access to these doors, you can’t violently stop somebody from attending and actually enforce those, I think that would set the precedent and it would show that they really mean what they say. They say they’re seeking truth and they want ideological diversity, but they’re not enforcing the policies across the board. So just like the Congress is doing here, it’s been great to hear members from both sides say, look, free speech is important. And I think setting this bar as Congress saying it is important and you have to hear diverse views, it then trickles down to the administrators to say, We mean what we say, and if somebody comes that you

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00095 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 90 disagree with, you can’t violently oppose that. And I think you would see a lot fewer shout-downs if they started enforcing the policies on the books. Mr. MITCHELL. Thank you. I also—Dr.Harper’s point, which I hope we can make on a broader basis is, it didn’t strike me until he said that, that we really don’t prepare most college faculty to be good instructors in that sense. It hadn’t dawned on me until I had the good fortune, for the most part, of having that. It hadn’t dawned on me until he said that that, sure, absolutely. Dr.Weinstein, what can you suggest? Mr. WEINSTEIN. Well, let me add something to that. He’s quite right, that we don’t train people to teach. And we also never spell out that the job of an educator is to teach you how to think, not what to think. So the fact that somebody at the front of the room happens to have a perspective that they hold dear, shouldn’t mean that they are attempting to transmit it to students wholesale. They should give them the tools to evaluate for themselves. Unfortunately, what we are seeing is the result of the politicization of the commons, effectively. And I suspect that that’s the result of two things, which is that people do not feel well-represented by the governance apparatus, and of the fact that they feel a threat of austerity which is causing them to be tribal. So if you really want to address this problem, people have to understand that they have more to gain by being patriotic together than by fighting each other for scraps. And I can’t see a way around this. The First Amendment is simply not sufficient to protect the free exchange of ideas in the private sector. It is not sufficient to protect it on college campuses that don’t happen to be public. And it’s actually not especially useful on public campuses where it doesn’t deal with issues like censorship, or self-censorship. Mr. MITCHELL. Dr.Stanger, do you have anything else before we wrap up? Ms. STANGER. Just very quickly. We need to teach students how to think, not what to think. And that’s our main objective. Mr. MITCHELL. Dr.George? Mr. GEORGE. I’ll just conclude by saying that the first thing I would like to see are more faculty members exemplifying the courage of Allison Stanger and Bret Weinstein. We teach more effectively by example than we do by precept. And seeing professors who are willing to stand up to threatening mobs, seeing professors who are willing to question orthodoxies, whether they’re on the left or the right, is the greater encourage- ment to students that we could have. As far as Congress and the State legislators are concerned, I think it is very important that Congress not try to run universities. The State legislators not try to run universities. But I go back to my point about keeping a spotlight. Sunlight really is the best dis- infectant. And one of the things that you and your colleagues and the State legislators can do is keep the spotlight on by having hearings of this sort. So people in the universities know that others are watching and that others care about this, and that they’re not going to just let this go on without comment.

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Mr. MITCHELL. There are days I’m not certain Congress can run itself, so your advice is well-warranted. Mr. Chair, I yield back. Thank you for the patience. Mr. PALMER. I thank the gentleman. In closing, first of all, I want to thank the students who stuck it out through this rather lengthy hearing. Once a month, I host a breakfast for young people. It is mostly millennials. And the whole point of it is to prepare them for the day when they’re going to lead. And I hope that this is one of those days where this has been instructive to each one of you who are here today inn preparation for when that time comes, because it will come. Dr.Stanger, Dr.Weinstein, Mr. Langhofer, Dr.George, Dr.Harper, members up here, one day will not be here and it will be left to you. And I take it as a tremendous responsibility and obligation to do all that I can to prepare you for when that day comes. So I encourage you to hear what your professors say, but dig into it yourselves. You know, I asked that they put up the First Amendment. And the thing that I want to get across to you, particularly students, I’m speaking to you now, is be prepared to defend what you believe, in particular, the Constitution. We’re a Constitutional republic. That means that you get to chose who come to Congress. You get to choose whether or not you participate in that process as a representative at whatever level. One day that day will come. I want you to be prepared for that. You look at what the First Amendment says. I would argue that every aspect of that is under threat today: your right to free speech, your right to assembly, your right to associate, the freedom of the press, and the right to petition the government. Thankfully, we haven’t lost that. And also freedom of religion. Your religion is not confined to the church house or the Mosque or the synagogue. It is who you are. So exercise that. And then I believe there’s a formula, and I like formulas. Prior to running the think tank, Dr.George, I worked in engineering. And you know what they say about engineers. They are people who are good at math but don’t enough personality to be an accountant. I resemble that remark. But I believe there is a formula for gaining wisdom which leads to tolerance, and it is this. It is education plus experience. Education comes early, but it never ends. And experience becomes education magnified. Education experience properly gained and properly applied contemplated and serious coupled with critical self-reflection, Dr.George, and humility heals a sum that should reflect wisdom and tolerance. And denying students the opportunity to hear views different from their own undermines their education and limits their experience, and seriously limits the growth of wisdom and tolerance. It makes that sum that you’re trying to attain much more difficult. And in my years running a think tank, it might shock you if I told you some of the publications that I read regularly from the left, and some of the people that I engaged in in conversations. So I was telling Ranking Member Raskin that, you know, he and I don’t agree on a lot of things, but I learn from listening to people

VerDate Nov 24 2008 13:38 Nov 29, 2018 Jkt 000000 PO 00000 Frm 00097 Fmt 6633 Sfmt 6633 H:\32667.TXT APRIL KING-6430 with DISTILLER 92 who have a different opinion than mine. And it is made me immeasurably better. And being able to intelligently address issues and to gain a more respectful understanding of other people’s views. So that’s my little closing comment to each of you as students. Thank you for being here. I thank our witnesses for appearing before us today. The hearing record will remain open for 2 weeks for any member to submit written opening statements or questions for the record. If there’s no further business, without objection, the subcommittee stand adjourned. [Whereupon, at 4:15 p.m., the subcommittees were adjourned.]

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MATERIAL SUBMITTED FOR THE HEARING RECORD

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ALLlANCE DEFENDING FREEDOM FOR FA!TH FOR.JUS:TJCE

RESPONSE TO POST-HEARING QUESTION FROM THE HOUSE SUBCOMMITTEE ON HEALTHCARE, BENEFITS, AND ADMINISTRATIVE RULES AND THE HOUSE SUBCOMMITTEE ON INTERGOVERNMENTAL AFFAIRS REGARDING THE MAY 22, 2018 HEARING ENTITLED: Challenges to the Freedom of Speech on College Campuses: Part II

Tyson C. Langhofer, Senior Counsel Director, Center for Academic Freedom

Alliance Defending Freedom

June 25, 2018

I) F1rs1 Strtet NW Suite 600, Washinglon D.C. 20001 Phone· 800.835.5233 Fa);, 20LH7.3622 Ali!JnceDelendJngFreedom.org

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Dear Chairman Jordan, Chairman Palmer, and Members of the Committee:

I am writing in response to the following post-hearing question submitted by Chairman Mark Meadows, Subcommittee on Government Operations:

On May 22, 2018, at a joint-hearing titled, "Challenges to the Freedom of Speech on College Campuses: Part II" with the Subcommittee on Healthcare, Benefits, and Administrative Rules and Subcommittee on Intergovernmental Affairs, we assessed the current state of intellectual and ideological diversity at institutions of higher education. We also examined responses to anti-speech episodes from those at the forefront of the debate. In your opinion, at which point does speech become hate speech and should be limited?

RESPONSE

The First Amendment does not recognize an exception for hate speech. In fact, the First Amendment was specifically designed to protect such speech. The Supreme Court reaffirmed this principle just last term in Matal v. Tam, 137 S.Ct. 1744, 1764, 582 U.S. __ (2017) when it held: "Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate."'

It is well-settled that the "First Amendment generally prevents government from proscribing speech ... because of disapproval of the ideas expressed. Content based regulations are presumptively invalid." 1 "[A]ny restriction of the content of student speech in these areas is subject to ... strict scrutiny" and may only be justified by showing a "compelling state interest."2 And even "content-neutral restrictions are permissible only if they are reasonable time, place, and manner regulations that are narrowly tailored to serve a significant government interest and leave open ample alternative channels of communication."3

Although universities have an interest in preserving order to accomplish its educational mission, a mere "interest in an orderly administration of its campus and facilities in order to implement its educational mission does not trump the

R.A. V v. City o[St. Paul, 505 U.S. 377, 382 (1992) (internal citations omitted). Roberts v. Haragan, 346 F. Supp. 2d 853, 862 (N.D. Tex. 2004). ld

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interest of its students, for whom the University is a community, in having adequate opportunities and venues available for free expression."4 In addition, "[m]ere speculation that speech would disrupt campus activities is insufficient because 'undifferentiated fear or apprehension of a disturbance is not enough to overcome the right to freedom of expression on a college campus. "'5 Colleges are supposed to protect the rights of students to speak freely on campus, not regulate such activity based on the content of speech.

According to the U.S. Supreme Court, to avoid conflict with other constitutional rights, schools are only responsible for punishing harassing conduct that is "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."6 The Court noted, however, that even this standard may be too strict in a college setting. "A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy, and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims."7

A college policy is unconstitutionally vague when "men of common intelligence must necessarily guess at its meaning."8 The First Amendment requires that government policies be written with enough clarity so that citizens have fair warning about prohibited and permitted conduct. 9 Policies that lack such clarity have been routinely struck down by courts, because what is "derogatory" or "offensive" varies from one person to another. 10 To avoid being void for vagueness, speech policies must contain precise definitions of what speech is prohibited so that students have sufficient notice of what expression is subject to the policies.

!d. at 863. Univ. ofCincinnati Chapter of Young Ams.for Liberty v. Williams, 2012 WL 2160969, at *6 (S.D. Ohio June 12, 2012) (quoting Healy v. James, 408 U.S. 169, 191 (1972)). Davis v. Monroe Cty. Bd ofEduc., 526 U.S. 629,651 (1999) (emphasis added). !d. at 649 (citing id. at 667-68 (Kennedy, J., dissenting)). Broadrick, 413 U.S. at 607. !d.; UWM Post, Inc. v. Bd a.( Regents ofUniv. of Wis. Sys., 774 F. Supp. 1163, 1178 (E.D. Wis. 1991). 10 See, e.g., Dambrot v. Cent. Mich. Univ., 55 F.3d 1177, 1184 (6th Cir. 1995) ("Though some statements might be seen as universally offensive, different people find different things offensive.").

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Very truly yours,

Ty~C.L~ Tyson C. Langhofer, Senior Counsel, Director, Center for Academic Freedom Alliance Defending Freedom

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Question for The Honorable Robert P. George McCormick Professor of Jurisprudence Director, James Madison Program Princeton University

Questions from Chairman Mark Meadows Subcommittee on Government Operations

Chairman Meadows asked: "At what point does speech become hate speech and should be limited?"

"Hate speech" is a phrase with no settled or determinate meaning. Although certain forms of expression (defamation, obscenity, threats, false advertising, et.) are unprotected under the First Amendment, there is no "hate speech" exception to the Amendment. I regret to say that this is a matter on which even many of our most talented and best educated young people are in error. Many of my own students at Princeton enter my Constitutional Interpretation course erroneously believing that "hate speech" is outside the scope of constitutional protection. One of my first tasks is to disabuse them.

My classrooms are always "free speech zones." In fact, in my view, every public space on a college or university campus should be a "free speech zone" (which is to say that there should be no need for special "free speech zones" on a campus). Students are free to advocate any view, and, indeed, I encourage students to defend any view they hold, so long as they are prepared to do business in the proper currency of intellectual discourse-a currency consisting of evidence, reasons, and arguments. My Princeton colleague Peter Singer defends the morality not only of abortion but even of infanticide-the deliberate killing of newborn babies. I find his position appalling and even scandalous. But because he is ready, willing, and able to make his case by adducing evidence, providing reasons, and making arguments, I believe he has a right to make it and, indeed, should be encouraged to do so. That I am unpersuaded (and appalled and even scandalized) by such advocacy is neither here nor there; nor does it diminish his right. In fact, I encourage my own students to take Professor Singer's classes and to consider his arguments in a thoughtful and open-minded manner. Their education is enhanced by considering not only the views and arguments about abortion and infanticide they hear from me, but also the ones they hear from him. I have no desire (and no right) to indoctrinate my students. And if they are to learn to think for themselves and be genuine truth-seekers, it is important for them to be exposed to challenges from the broadest possible range of perspectives. I want them to hear and consider my perspective. But I want them to hear and consider Professor Singer's too. And I want them to hear and consider the perspectives of others as well.

Of course, someone could say: "Professor Singer is advocating the license to kill an entire class of human beings. That is hate speech. It should not be allowed. His tenure at Princeton should be revoked. He should be fired." But such a person would receive no support from me. On the contrary, I would insist that Professor Singer's right to state and defend his views-with evidence, reasons, and arguments-must be strictly respected and protected.

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Now, a legitimate question arises about how we distinguish mere demagoguery from genuine intellectual arguments. As a practical matter, however, this is not an issue that has to be resolved to settle campus free speech policy. We must err on the side of free speech. We should fight demagoguery not by prohibiting speech, but by exposing the demagogue. The demagogue appeals to emotion (prejudice, animus, etc.) not reason. His "reasoning" is a counterfeit-indeed a burlesque--of the real thing. So let him speak, but call him out. The danger of restricting demagogic speech-the danger of censorship--is that the authority to restrict demagogic speech can, and quickly will, be used as a pretext for censoring speech that powerful persons or interests on campus abominate.

What I do not permit in my classroom, and what universities may legitimately prohibit (and should prohibit) are such things as assaults (much less actual batteries), intimidation, threats, and raw abuse. These kinds of activities are not even fake reasoning. They are the opposite of reasoning. Calling a person a vile or vulgar name is not stating a reason or making an argument. Threatening or intimidating someone is not giving him a reason to change his mind about something. If that is what someone means by "hate speech," then, yes, that should be forbidden on campus. It does not advance the intellectual mission of the university, viz. the cause of truth seeking. On the contrary, it poisons the environment and makes genuine discussion and debate impossible.

But, that, of course, is not ordinarily what people mean when they use the phrase "hate speech" and propose to prohibit it on campus. What they ordinarily mean by "hate speech" are positions and views that they detest and want to make it an offense to advocate or defend. They want, in effect, to immunize their own positions and views from critical challenge. This, to me, is simply unacceptable. My admirable friend Professor Allison Stanger was attacked by a mob on her own campus at Middlebury not because she called someone a disgusting name or threatened or intimidated someone-she has never done and would never do anything of the kind--but because she was willing to engage in reasoned debate and discussion with Charles Murray, some of whose opinions were (to the limited extent that the people who constituted the mob understood them) anathema to them. These misguided souls justified their illiberal and violent actions by claiming to be fighting against "hate speech."

I hope that these reflections are responsive to Chairman Meadows' question. If more detail or additional thought would be helpful, please let me know. I will be happy to supply them.

Yours sincerely,

Robert George

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Question for Dr. Allison Stanger Scholar in Residence New America

Questions from Chairman Mark Meadows Subcommittee on Government Operations

May 22, 2018, Hearing: Challenges to the Freedom of Speech on College Campuses

1. On May 22, 2018, at a joint-hearing titled, "Challenges to the Freedom of Speech on College Campuses: Part II" with the Subcommittee on Healthcare, Benefits, and Administrative Rules and Subcommittee on Intergovernmental Affairs, we assessed the current state of intellectual and ideological diversity at institutions of higher education. We also examined responses to anti-speech episodes from those at the forefront of the debate. In your opinion, at which point does speech become hate speech and should be limited?

There are certain categories of speech or expression that fall outside the protection of the First Amendment. Our constitutional jurisprudence has long recognized such categories as obscenity, defamation, false advertising, and incitement to violence as "unprotected speech." Hate speech, however, has never been among the categories of unprotected speech. When Taylor Dumpson was elected the first female African-American student body president at American University, an unidentified man hung bananas from nooses around campus on her first day in office. The incident was investigated by the FBI as a hate-motivated malicious threat and was defended by no one.

Your excellent question, however, is addressed to the argument that freedom of speech that permits campus hate speech is problematic. The very title of our May 22, 2018 hearing suggests that the discussion we are currently having on college campuses is primarily about freedom of speech, which leads to questions of this sort. As I suggested in my testimony, however, I don't think this is the case. Instead, we are having a discussion about the mission and purpose of the university, which shapes what is viewed as appropriate in our classrooms and on campus.

Hate speech by my definition involves an ad hominem attack, an assault on someone's character or identity, rather than on the logic of the view that a person holds or the evidence marshalled in support of that person's argument. Hate speech thus has no place in any meaningful intellectual exchange at an institution of higher learning. An important part of liberal education involves learning to empathize with others from different backgrounds and with different histories. Self absorbed beings that we are, we humans sometimes fail in this endeavor. That is why we all have to be prepared to make mistakes, to own them by apologizing sincerely, and then to move on. If a student finds something another student says offensive, a good teacher will seize this teaching moment to enlighten all in the classroom on the sources of the misunderstanding, assuming good faith on the part of all until proven otherwise. He or she will make students realize that their

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words have an impact, and that becoming a better person will require taking responsibility for the pain we may unknowingly inflict on others.

Since I aim to maintain a learning environment that is respectful of all students, I must teach them how to discuss issues civilly with those with whom they disagree. When I focus on evidence based reasoning that is respectful of the diversity of human outlooks and ban ad hominem attacks masquerading as arguments in my classroom, students can focus on developing their minds, not censoring the language of others. Censorship and self-censorship are always at odds with liberal education, just as are prejudice and discrimination that overlooks the individual.

That said, there is certainly plenty to learn from the words we choose to use, and learn from them we should. But this is best done in an environment where no one has to fear being socially ostracized for expressing something in an awkward way, which, after all, is also part of being human. We say stupid things, and if we are good people, we learn from the experience. The best response to speech that is interpreted as hateful is more speech in a learning environment overseen by teachers who are mindful of the rich diversity of human thought, activity, and self understanding. Liberal education itself is thus the best vaccine against hate.

Classroom environments are within the power of teachers to create, but today's professors do not have equivalent power to shape the extracurricular environment beyond the classroom. College administrators must attempt to bridge this gap; they sometimes have done this in less than optimal ways, especially when Title IX administrators and provosts or presidents speak in different voices.

To summarize, teachers, administrators and students alike can stand on principle to defend equal educational opportunity and American ideals without invoking hate speech as the reason for social censure.

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