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Sunday, January 21, 2018

Speech Regulation and the University-as-Active-Speaker

One path that a complicated religiously-affiliated institution might follow when attempting reconcile speech and other mission values is what might be called the university-as-active-speaker model, whose outlines are reflected in my university’s new speech policy, adopted earlier this year. 

That policy, entitled the Guiding Principles of Speech and Expression (the “Principles), acknowledges that “the Vincentian ideal of universal dignity” depends “in no small measure upon an individual's freedom to give voice to [her] beliefs.”  The policy, accordingly, protects individuals’ right to speak, “even at the risk of controversy.” (Principles 4, 6).  And it includes an interpretive canon that directs the university to resolve ambiguities in existing “policies and procedures” in favor of freedom of expression.  (Principle 7).

Some free speech watchdogs have focused on Principle 3, which affirms DePaul’s mission “to amplify marginalized voices” and “create opportunities for conversations that advance social justice.”  According to Adam Goldstein, a fellow at FIRE, this language (which parallels some language from the mission statement of the University of Chicago’s Center for Identity + Inclusion) signals that DePaul wants to (this is a paraphrase) “subordinate free speech to [DePaul’s] social justice values.”

This reading, though, misreads the policy.  (And here, of course, I speak for myself, not the university).

The Principles, rather, affirm that DePaul’s social justice mission has both equity and autonomy-based components.  And it expresses an equal commitment to each cluster of values by distinguishing between two different categories of speech.

The first is speech by DePaul “as a university”—that is, DePaul acting as a corporate religious and educational institution, whether by funding campus activities, inviting commencement speakers, or sponsoring official university programming. The second category is speech by “individuals”— students and faculty.

Guiding Principle 3, in turn, governs university speech. 

It takes as a starting point that DePaul has a viewpoint.  It is a mission-based religious university with a special concern for the marginalized.

But, by borrowing from mission statement of the U of C Center for Identity + Inclusion, Principle 3 underscores DePaul’s intent to promote the equity-based aspect of its mission in the speech-protective way the University of Chicago promotes its secular commitment to “a more equitable society”:   by providing resources that “amplify” the voices of the marginalized. 

This includes university sponsored mission-and-values programming; support for affinity centers; an admissions system that has special regard for first-generation college students; special subsidies for mission-aligned student service groups; and a strong commitment to diversity in hiring. DePaul is so deeply committed to these goals that it puts that commitment front and center in the principles that guide DePaul-as-speaker.

When the university turns to “individual" speech in Principle 4, it respects the dignitary interest in expression by drawing at a line at censorship.  There, the university commits instead to broad student speech rights, “even at the risk of controversy,” subject only to restrictions contained in Principles 5 and 6.

What are these restrictions?  First, DePaul, like other universities, reserves the right to regulate the time, place, and manner of speech to ensure the university functions without disruption. (Principle 6).

Second, the university is also obligated to prohibit some speech under federal and state law and applicable accreditation rules.  Because the Guiding Principles are not legal or contractual provisions, the university’s Speech and Expression Task Force did not enumerate the different legal prohibitions on speech that apply to DePaul. But given troubling episodes involving external speakers here and at other campuses, the Principles emphasize that “threat[s] or intimidat[ion]” are among these prohibited categories.   (Principle 6). 

Could our Guiding Principles be even clearer?  Sure.  But disagreements can be resolved by Principle 7’s express pro-speech interpretive canon—against which the Principles themselves should be interpreted.

This “university as an active speaker” model is one roadmap, anyway, for schools that are committed to expressive autonomy but also, at the same time, understand aspects of their mission in ways that, in some instances, differ from the viewpoint of speakers that some student organizations invite to campus. 

Posted by Mark Moller on January 21, 2018 at 01:53 PM | Permalink


Well said, I think. I am inclined to prefer universities (religious or not) being candid about the extent to which they, institutionally, "speak" or otherwise stand for things, including religious teachings, commitments, etc., to pretending they do not (when, really, they do).

Posted by: Rick Garnett | Jan 22, 2018 11:06:50 AM

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