BY MICHAEL C. BEHRENT

Last year, North Carolina became one of the first states to adopt a so-called “campus free speech” law (S.L. 2017-196). This law, like similar legislation that has been proposed or approved in other states, was drafted by a partisan conservative think-tank and supported by sympathetic legislators. Premised on the dubious proposition that a “free speech” crisis exists on American campuses, it requires punitive measures for dealing with student protestors when they interfere with the free speech rights of others, narrowly construed.

For these reasons, AAUP has regarded the push to adopt such bills with considerable skepticism (see the association’s “campus free speech” toolkit and the Government Relations committee “campus free speech” legislation report, which also appeared in the 2018 Bulletin). One year into this new “free speech” regime, North Carolina’s example teaches us how this legislation works in practice and what AAUP chapters and state conferences can do to monitor its implementation.

One year later, here is how the “campus free speech” situation stands in North Carolina.

– Disciplinary sanctions: The policy that the University of North Carolina Board of Governors (the politically appointed body that governs the seventeen-campus system) adopted to implement the “campus free speech” law required campuses to “implement and enforce a range of disciplinary sanctions, up to and including dismissal or expulsion, for anyone under the jurisdiction of the constituent institution who substantially disrupts the functioning of the constituent institution or substantially interferes with the protected free expression rights of others” As far as the state conference knows, no student in the UNC system has been subject to disciplinary sanctions under the law over the past year.

– “Responsible officers” and mandatory training: The Board of Governors’ policy requires each UNC campus to designate a “responsible officer” for implementing the law and policy—a “free speech czar,” as it were. General counsels, vice-provosts for faculty affairs, and deans of students are among some of the administrators that have been appointed to this position. The responsible officers were required to undergo “free speech training,” conducted at the School of Government of the University of North Carolina at Chapel Hill.

– “Free speech” at new student orientation: The Board of Governors’ policy stipulates that each UNC campus shall “include in any new student orientation programs a section describing their institutional policies regarding free speech and free expression.” Several UNC AAUP chapters contacted the “responsible officers” on their campus and requested the materials that had been presented to new students (an example of the letter chapters might write to such administrators can be found at the end of this post). Two campuses received PowerPoint slides relating to “campus free speech” policy that were presented at orientation this past summer. One of these slides informed students that “the University strives to uphold freedoms of expression and speech outlined by the First Amendment.” It added: “As a university student you will experience ideas and opinions that you may find unwelcome, disagreeable or even deeply offensive. (And we have resources if this happens! We WANT to support you!).” Further points included: “We are a Public university with an open campus”; “You can’t drown out someone else’s speech because you don’t like it”; “Report issues to the [relevant university] office: Your free speech should be respected on our campus.”

– Free speech days: Though not explicitly required by the policy, some UNC campuses have organized “free speech days” to teach students about university policies. One administrator sent an email to incoming students at the beginning of the fall semester 2018 announcing such a free speech day, stating the following: “Given the academic mission of [the University], we are committed to maintaining an environment where freedom of speech is affirmed, maintained, and celebrated. During your time here you may experience ideas, views, and opinions that challenge that of your own. Some you will find enlightening and engaging while others may feel unwelcome, disagreeable, or even offensive. However, given the open nature of a public educational institution, we embrace and strive to uphold the freedoms of expression and speech as guaranteed by the First Amendment of the United States and North Carolina Constitutions. [The University’s] Facility Use Policy outlines processes specific to our university related to freedom of speech.”

– Rendering free speech policy coherent: We have learned that some campuses are reviewing all their policies with free speech implications to ensure these policies are consistent with one another.

– Reporting to the Board of Governors: The Board of Governors’ policy requires the “responsible officers” of constituent campuses to report regularly to the Board of Governors’ Committee on Free Expression, specifically on campus trends relating to free speech and institutional neutrality (the policy and law require administrations to remain neutral on issues of public import). The first report that the seventeen campuses will have to submit is due September 1.

Assessing “Campus Free Speech” Legislation in North Carolina
What, then, has been the impact of the “campus free speech legislation” in North Carolina? For the time being, the UNC system has focused primarily on establishing the administrative infrastructure to monitor and ensure enforcement of free speech policy. So far, the law and policy have not resulted (to our knowledge) in any unusual disciplinary sanctions or restrictive policies. Some conservative organizations have claimed that the fact that no “shout-downs” or disinvitations of speakers have occurred on UNC campuses as evidence of the law’s success; but these were few and far between even in earlier years, despite the fact that the perception that such incidents were rampant helped to fuel the conservative effort to adopt the law. We also sense that most campus administrators are uneasy with and embarrassed by the law, and while none have explicitly spoken out against it, they seem to share a desire to downplay its effects.

Even so, the law’s emphasis on using disciplinary measures to punish student (and possibly faculty and staff) activism that it characterizes as “free speech violations” makes it necessary, in our current highly polarized environment, to keep a close watch on how universities implement this policy. This is true of the UNC system as well as of universities in other states that have adopted or are considering adopting similar legislation.

What can AAUP chapters or state conferences do? Consider the following actions:

– Make sure faculty and students are informed of the specific provisions of “campus free speech” legislation.

– Regularly ask for reports on the implementation of such legislation of administrators, notably during Faculty Senate meetings.

– Request to see the administration’s “free speech” orientation materials (see sample letter below).

– Request to see any reporting on “free speech” policies your campus prepares for governing boards.

– Request that universities incorporate AAUP documents into “free speech” materials it distributes.

– Request that AAUP members have an opportunity to speak at university-organized “campus free speech” forums.

– Stay vigilant.

Michael C. Behrent is an associate professor of history at Appalachian State University and vice president of the North Carolina state AAUP conference.