Washington Watch: House bill aims to redefine free speech on campuses

Rep. Virginia Foxx (R-North Carolina) chairs the House Education and the Workforce Committee. (Screenshot from streamed event)

The House Committee on Education and the Workforce is scheduled on Thursday to mark up H.R. 7683, the Respecting the First Amendment on Campus Act.

The legislation has been stitched from six bills introduced by Republican members of the committee. It was introduced less than a week ago and is being marked up with three other bills by the education committee. It is expected to pass on a party-line vote. The American Association of Community Colleges (AACC) opposes the legislation.

The American Council on Education, on behalf of its member associations, including AACC, on Wednesday sent committee leaders a letter in opposition to the proposed legislation.

A statement accompanying the introduction of the legislation held that “The worst kept secret in American postsecondary education is the long-standing and pervasive degradation of First Amendment rights. Occurrences like shout downs from angry mobs, disinvitations of speakers, and ‘cancellations’ have become commonplace at our colleges and universities, often because taxpayers are forced to subsidize woke faculty and administrators. This trend threatens students’ constitutionally guaranteed rights at a public institution and the ability of campuses to maintain a civil educational environment. Luckily, sensible public policy can push back on this plague of illiberalism and restore decency on campuses. Dozens of states have already enacted legislation to protect the First Amendment rights. But progress has been slow and has not yet spread throughout the nation.”

The legislation addresses several different aspects of campus activity. It’s some House legislators’ interpretation of how the First Amendment should be interpreted and applied on college campuses.  As public institutions, community colleges are clearly required to provide First Amendment protections. But, given the varied nature of higher education institutions and the responsibilities they face for complying with other laws as well as ensuring students’ safety, there are inevitably some differences in how institutions interpret and apply their First Amendment obligations. This unavoidable and desirable variation is one of the factors that makes the legislation problematic for AACC. The bill also has some requirements that AACC thinks are misconceived and will be difficult, if not impossible, to implement. The legislation also carries with it substantial costs.

Some of the bill’s major provisions include:

  • An institution that collects mandatory student fees must establish and make publicly available clear, objective, content- and viewpoint-neutral standards to allocate funding for recognized student organizations.
  • Public institutions would not be able to prevent a person from freely engaging in “noncommercial expressive activity” on campus, regardless of whether the individual was a student. 
  • Institutions must annually certify to the U.S. Education Department that the institution has annually disclosed to current and prospective students and faculty any policies held by the institution related to association, religion and speech. The bill also would require public institutions to disclose the specified right to a cause of action.
  • Institutions would be prohibited from requiring a political test for student admission or appointment, hiring, promotion or granting tenure. The bill defines a political test as compelling a student applicant or employee of an institution to commit to or make a statement in support of or opposition to any ideology or partisan belief. A political test is also defined as compelling a student or employee to promote the disparate treatment of an individual because of his or her race, color, or national origin, such as through diversity, equity and inclusion initiatives.
  • Institutions in violation of various provisions of the legislation would be subject to a cause of action or potentially loss of federal student aid eligibility for at least one year.

The legislation faces an uncertain future. It may not have the votes to pass the full House, and Senate education policymakers do not appear inclined to support this or a similar measure. But the bill does highlight the fact that higher education overall remains mired in hot-button issues. 

About the Author

David Baime
David Baime is senior vice president for government relations at the American Association of Community Colleges.
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