A real free speech solution for college campuses
Imagine this: A foreign student on an American campus leads a menacing protest praising a group the U.S. government has labeled a terrorist organization. Nearby, Jewish students report feeling unsafe and harassed. The university hesitates to act, worried about accusations of censorship or discrimination.
Should this student be protected under the First Amendment, or should his or her visa be revoked?
The recent arrests of Mahmoud Khalil and other foreign student activists in favor of Palestine have sparked the national debate surrounding college students’ First Amendment rights. Critics claim that foreign visitors enjoy the same free speech rights as American citizens. They further argue that deporting political activists sets a dangerous precedent, moving the United States down the slippery slope to autocracy. This debate has been focused on the extent of protections foreign nationals receive when engaging in political expression.
Secretary of State Marco Rubio says otherwise. He explained this issue to the press with a different framing: “If we knew this information about them before we gave them a visa, would we have allowed them in? And if the answer is no, then we revoke the visa.”
The Immigration and Nationality Act gives the president the authority to deport “any alien who endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity.” This applies equally to both students here on academic visas and green card holders. It would be shocking if leading a protest movement that regularly glorified and supported Hamas, a U.S.-designated foreign terror organization, as “martyrs” and encouraged violence against innocent Jews (including American Jews) would not qualify as impermissible activity under federal immigration law.
Put simply, there is a difference between supporting the Palestinian people and advocating for the terror organization Hamas.
Also worth noting: Many universities have restricted students’ free speech rights based on differing political views for decades, often bowing to accusations that conservative views are inherently “hateful” or “racist.” Numerous such incidents are recorded by the Foundation for Individuals Rights and Expression, including speaker disinvitations, excessive “security fees,” weaponized bias response teams, denial of official recognition to conservative and religious student organizations, and attacks on academic freedom. (The organization likewise records and opposes anti-free speech efforts targeting liberals.)
The clearest point in the debate is this: People on either side of our nation’s political divide are primarily concerned about free speech when their own side is under attack. It would be better if all sides could agree to defend everyone’s First Amendment rights.
Thankfully, Rep. Erin Houchin (R-Ind.) recently introduced the Students’ Bill of Rights Act, which does just that. The bill would require universities to adopt viewpoint neutral policies, publicize them on campus, and impose new financial penalties when they fail to live up to those obligations.
The Students’ Bill of Rights Act would guarantee equal treatment for student groups regardless of political viewpoints by forbidding universities from using higher security fees to discriminate against disfavored speakers. This provision is important because violence and vandalism by speech opponents can be used as an excuse to charge exorbitant fees against “controversial” speakers, essentially penalizing the speakers and student groups who invite them for the unlawful behavior of their opponents.
The act would also ensure student groups are not denied recognition because of their affiliation with a national organization or due to their inability to find a faculty sponsor, a major issue for conservative groups due to the well-documented dearth of right-leaning faculty. And it ensures funding and university recognition protocols for student groups — and the appeals that might ensue — are made publicly available using objective and viewpoint-neutral standards.
If universities don’t comply? Strong enforcement mechanisms ensure they’re held accountable. This includes a civil cause of action for students whose rights have been violated, and a process for removing higher education funding from non-compliant universities.
What about student groups engaged in targeted violence and harassment of students? Would the new law force universities to officially recognize, for example, Columbia University Apartheid Divest, a collection of student groups that instigated systemic harassment of Jewish students and was involved in vandalism and destruction of property?
In a word: No.
Organizations engaged in illegal activity would not be entitled to official recognition. Moreover, calls for targeted violence are not protected under the First Amendment or in the Student Bill of Rights Act. Universities are also duty-bound under Title VI of the Civil Rights Act to ensure that students are not deprived of the opportunity to access educational opportunities by student-on-student harassment.
But, crucially, a university could not deny recognition to student groups based on the beliefs of their members. This means that a pro-“Palestinian liberation” group would have every right to peacefully express itself on campus, no less than radical feminists, antifeminists, Branch Davidians or anyone else.
Universities must uphold principles they once embraced of their own volition. Open debate, diversity of thought and free expression are necessary conditions of truth-seeking and hallmarks of a flourishing civil society.
Matthew Lobel is a policy analyst with America First Policy Institute's Higher Education Reform Initiative.