By Carol Zimmermann • Catholic News Service • Posted March 28, 2016

WASHINGTON (CNS) — College campuses, once considered bastions of free expression, have been erring so much on the side of caution and fear of offending others that many say they are stifling free speech.

“Muzzles have replaced megaphones on campus in many cases” is how the U.S. News & World Report recently described the trend.

At a March 21 panel discussion at the Newseum in Washington, panelists bemoaned that it has “been a bad year for free speech” on campuses and placed the blame on government regulations, school administrators and more increasingly, campus students.

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Eugene Volokh, a law professor at the University of California Los Angeles and a First Amendment scholar, said universities should be protecting free speech and encouraging students to hear diverse views, both of which traditionally have been part of the college experience.

Those in the majority, he said, need to hear criticisms and should be able to defend or argue their views. He also questioned the practice of telling minority groups they are “emotionally fragile and need safe spaces.”

Safe spaces are fine for physical safety, he pointed out, but keeping people safe from ideas they disapprove of is “not doing anyone a service.” Safe spaces is one of the new expressions on campuses, along with trigger warnings: where students get advance warning from professors if they plan to discuss something that might offend some students and micro-aggressions: small actions or words that might be interpreted as hateful or offensive.

In this environment, professors not only worry about offending students but they also could lose their jobs for doing so. The atmosphere has caused speakers to be disinvited from campuses and prevented comedians from showing up in the first place because they claim today’s overly sensitive college students can’t take a joke.

There is no doubt college campuses need to find a balance between free speech and efforts to curtail hate speech while combating racism and sexism on their campuses. But the group of law experts at the Newseum’s panel — sponsored by The Catholic University of America’s Columbus School of Law, Moment Magazine and the Religious Freedom Center of the Newseum Institute — argued that the balance shouldn’t come at the cost of restraining free speech.

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In wondering how schools came to this point, moderator Marshall Breger, Catholic University law professor, said it might even have something to do with the sheer expense of a college education.

He said universities used to be places to “be challenged and get outside your comfort level to learn new things.” Now people don’t want that, “maybe it’s because they’re paying $50,000 a year” and feel they shouldn’t have to put up with being offended.

The problem with the overriding fear on many campuses today, panelists argued, is that students’ own beliefs are reinforced, but they don’t develop the ability to dialogue with each other.

Greg Lukianoff, a constitutional lawyer and the president and CEO of the Foundation for Individual Rights in Education, which defends free speech and academic freedom on campus, likened what’s happening to an “echo chamber effect.”

“We should know what each other thinks, especially when it’s terrible,” he said.

He also noted that students’ views have definitely changed in recent years and he thinks it may have something to do with fact that their parents “fought for speech codes in the ’80s.”

Speech codes were meant to restrict hate speech and also include more diverse perspectives on campuses by prohibiting speech that would regularly be protected by the First Amendment.

Last year, Lukianoff told a House subcommittee hearing that Congress should enact an Anti-harassment Act to provide a clear definition of harassment and eliminating the need for speech codes on college campuses.

The U.S. Education Department’s aims to restrict campus speech are often based on federal anti-discrimination laws such as Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972.

Federal anti-discrimination statutes have long regulated harassment and unequal treatment on college campuses based on sex, race, religion and national origin. But a few years ago, the U.S. departments of Justice and Education expanded the definition of sexual harassment to include “unwelcome” verbal conduct.

To avoid federal investigations, many university administrators have applied the standard of unwelcome speech being harassment — and applied this to race and religion as well. The problem there, some argue, is that it is so subjective: If a student feels a comment by a fellow student or professor is unwelcome, the student can file a harassment claim.

The departments of Education and Justice mandated an unconstitutional speech code in May 2013 for all colleges receiving federal funding.

The Foundation for Individual Rights in Education, known as FIRE, surveyed 440 colleges for its recent report and found 49.3 percent had restrictive speech codes that limited free speech but it also noted that the number of such schools has been declining every year for the past eight years.

The group’s report listed the 10 worst colleges for free speech in 2016. Three Catholic colleges made the list: Mount St. Mary’s University in Emmitsburg, Maryland; St. Mary’s University of Minnesota in Winona and Marquette University of Milwaukee.

Writing about the report, Lukianoff said the Catholic colleges and universities listed made promises of free speech and academic freedom that they were obligated to uphold.

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Mount St. Mary’s was listed for the firing of a tenured professor and the student newspaper’s faculty adviser by the university’s president who has since resigned. The faculty members were reinstated.

St. Mary’s University of Minnesota was named for firing a professor for sexual harassment most likely because as the playwright of a school production he used props some considered inappropriate because they illustrated a body part, although the charges were never explained.

Marquette made the list for the university’s suspension of a professor for writings in his personal blog about a graduate student who he says shut down a dialogue on same-sex marriage to cut off those who oppose such marriages.

A March 24 statement from Marquette’s president, Michael R. Lovell, said a faculty committee had reviewed the case for several months and issued a 123-page report about the professor’s actions along with a recommendation which Lowell said he intended to follow but would not give details about.