US Republicans copy and paste England’s Free Speech Act

Over in the US Congress, Republicans Brandon Williams (R-NY) Virginia Foxx (R-NC and Chair of the Education and the Workforce Committee) have introduced the “Respecting the First Amendment on Campus Act”.

Young America’s Foundation (@yaf) enthusiastically welcomes the introduction of the Respecting the First Amendment on Campus Act.

As the premier organization working with conservative students, YAF is all too familiar with the roadblocks our students face when expressing… https://t.co/VmavGnK55B pic.twitter.com/056SLO7NHv

— YAF (@yaf) March 15, 2024

The legislation aims to ensure that universities are fulfilling First Amendment obligations by making free speech on campus a condition of receiving Title IV funding under the country’s Higher Education Act (HEA).

And several of its provisions are eerily familiar to those in England’s Higher Education (Freedom of Speech) Act 2023.

Last Autumn Foxx’s committee published a report similar in tone and framing to the Policy Exchange reports that led to our own legislation – it found that 45 percent of students believe blocking other students from attending a speech is acceptable and more than 25 percent of students believe using violence to stop speech is acceptable.

It also found that 90 percent of college freshman orientation programs include a focus on DEI, while only around 30 percent of orientation programs review the importance of free speech or viewpoint diversity. One in five students said that their college’s stance on free speech was unclear.

What the committee described as a “hostile takeover of postsecondary education” by “political activists, woke faculty, and partisan administrators” has established what they argue is a “dangerous trend that threatens students’ constitutionally guaranteed rights and the ability of campuses to maintain a civil educational environment free of political bias and agendas.”

So the Bill is designed to tackle that. Section 2 all but mandates the use of the University of Chicago’s Chicago Principles and to develop and consistently implement policies accordingly. It also condemns public institutions for conditioning student admission, hiring, reappointment, or promotion of any faculty member, on making a statement of support or opposition to any political ideology, including regarding diversity, equity, and inclusion – not dissimilar to provisions in the HEFoSA on staff appointments.

Just as universities in England will need a (beefed up) Code of Practice, under these proposals every institution eligible to receive Title IV funding will need to certify to the Department of Education (ED) 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.

In a country where student clubs are less likely to be organised by an SU and more likely to be sponsored by a staff member, institutions will be barred from denying recognition to a student organisation because the organisation is unable to find a faculty sponsor – and as in the HEFoSA, there will have to be publicly available, clear, objective, content- and viewpoint-neutral standards to allocate funding for recognised student organisations.

They’ve even copied across the security costs panic – institutions will have to make publicly available clear, objective, and content- and viewpoint-neutral standards to determine the security fees assessed for events organised by a student or student organisations. Public universities would not be able to consider the “anticipated reaction by students or the public to the event” in deciding how much to levy in security costs.

The Bill also seeks to protect students’ free association right to join a single-sex social organisation (something covered by the Equality Act here), and they’ve also copied across the “promote” duty – new and transfer students at orientation will have to get an explanation of the First Amendment rights of students, including assurances of the institution’s commitment to freedom of expression and that students and speakers will not have their rights violated. Institutions will also have to provide educational programming at orientation on free speech rights and responsibilities, and post those materials online.

Enforcement is also fun – the Department of Education will get the power to hear complaints from aggrieved individuals or organisations who have been “harmed” by a violation of the requirements of the bill and who have exhausted any available appeals.

Most of the provisions would only apply to public colleges that receive federal financial aid, but private institutions would also have to disclose their speech policies to students, staff and the Education Department every year, and will be compelled to allow single-sex social organisations.

Is the US about to walk headlong into the same see-saw problems that England is in? Almost certainly. Jon Fansmith, senior vice president for government relations and national engagement at the American Council on Education, said the legislation isn’t “helpful” and that it would hamper universities’ ability to tackle hate speech:

It is striking that at a time when the committee’s spending so much effort and attention and focus on protecting students from harmful or hateful speech … that they’re also proposing a bill that would limit almost any ability of an institution to protect those students from that kind of speech…it is dictating institutional practice when these are already really complicated situations that involve numerous factors that aren’t easily understood and that vary based on a case-by-case basis.

Maybe telling politicians that all of this is more complicated than it looks will work in the US. I doubt it, mind.