CU Regents Okay Free Speech and Academic Freedom Policy Changes

Board of Regents meeting at the University of Colorado Anschutz Medical Campus on September 14, 2018.
Board of Regents meeting at the University of Colorado Anschutz Medical Campus on September 14, 2018. Conor McCormick-Cavanagh
When Ann Coulter came to the University of Colorado Boulder this past March, it cost the school over $10,000 in added security and led to heightened discussions of the role of free speech and academic freedom on college campuses, one of the of hottest topics in higher education. On September 14, the University of Colorado added robust protections to its free-speech and academic-freedom policies, as CU's Board of Regents passed extensive revisions to the university's regent laws.

Across the nation, student groups have invited controversial speakers to their campuses, leaving university administrators to figure out how to deal with protests and event security while upholding free-speech principles. Lightning-rod figures such as Milo Yiannopoulos and Coulter have come to CU Boulder, leading to protests and tension among supporters and opponents alike. In other cases, students or faculty have felt unfairly targeted in the classroom for their political beliefs. In response, the regents decided to make the university's guiding principles for both free speech and academic freedom clear, taking a cue from a memo provided by CU's lead attorney in May.

Freedom of expression is "a freedom that attaches to all citizens engaged in constitutionally protected speech," wrote Patrick O'Rourke, CU counsel and secretary of the Board of Regents. Academic freedom "applies to speech of an academic nature within an institution of higher education." His memo lay out the arguments supporting the proposed revisions to the regent laws, the highest guiding policies for CU.

"We've always had academic freedom as part of the policy. What we've done here is distinguish between academic freedom and free expression. We're one of the only universities in the country that has articulated it that way," says Ken McConnellogue, vice president for communication at the school. "CU has done pretty well in terms of hosting controversial speakers. We hosted Milo Yiannapoulos, Charles Murray and Ann Coulter, largely without incident. We've been working pretty hard over the past few years to work on free speech, and this codifies it in the most important institutional government."

Milo Yiannopoulos caused a stir at CU in 2017. - YOUTUBE
Milo Yiannopoulos caused a stir at CU in 2017.
With the new revisions, there is now full institutional backing for students to speak freely and demonstrate their opinions in public areas of the university's campuses, such as plazas and common lawns. The updates explicitly forbid "free speech zones," as mandated by Colorado Senate Bill 62, noting that "generally accessible outdoors areas on the campuses shall be available to members of the university community for free expression in accordance with campus policies authorized by this section."

Speech that offends groups or categories of people cannot be suppressed, according to the updates. This extends until speech incites "imminent lawless action," per a 1969 U.S. Supreme Court ruling. If a student's speech in a public area on campus does incite violence or is clearly harassment, then U.S. and Colorado constitutional rights do not protect it. However, a high threshold must be met in order to prove that speech is, in fact, harassment, according to the new rules.

In pushing forward these expansive policies, CU joins a growing list of universities that have come down strongly on the side of free speech and academic freedom. The school's student government supports the regents' changes.

According to Azhar Majeed, vice president of policy reform at the Foundation for Individual Rights in Education, the regents' revisions "did a good job of laying out why free speech is important on college campuses. And not just because it’s protected by the First Amendment, but also because it’s something that’s beneficial to the campus community and really the lifeblood to an educational community."

Under the new policy, the university and any member of its community may openly express their rejection of the views of controversial speakers, but the University of Colorado "must strictly adhere to the principle of viewpoint neutrality, meaning that the university shall not prohibit or restrict speech based upon either the substantive content of the speech or the message it conveys or because of the reaction or opposition of others to such expression."

If a student group wants to invite an Islamophobic or homophobic speaker, for example, then it can do so without restrictions, since the university is taking a neutral stance on the views of speakers. Unless there are major security concerns related to the event, such as threats for violence, the event can go on. And if the school does cancel the event, it must prove that its security concerns are valid. Additionally, the university is ready to cover any additional security fees stemming from expected protests related to a student-run event.

CU's revisions also cover free-speech rights for university employees and faculty members outside of the classroom. If a professor speaks on FoxNews or MSNBC about her views on evolution, it's covered as free speech. However, the professor would have to indicate that she was representing herself and not the university.

In the classroom, academic-freedom rights take over. A professor is free to present beliefs that many might find controversial or disagree with, as long as the presentation of such beliefs fits in with the course's curriculum and does not detract from the course's pedagogical merit. But if a professor is teaching mathematics and starts offering a lesson about President Donald Trump's immigration policy, this would not fall under academic-freedom protections.

The regents had been discussing the proposed policy updates over the past several months. Just prior to the September vote, however, several went on the record about specific concerns.

Sue Sharkey, chair of the Board of Regents, noted that charges that the university campus has a cultural bias against the right cannot be solved by the revisions. "What I hope is that this university community will find ways within their departments and classrooms to expect and demand that culture of respect and culture of freedom of ideas, where people feel welcome to express opposing viewpoints,” she said.

Another regent, Irene Griego, also had concerns. "I support freedom of speech, 100 percent," she said. "But what’s important is that we have safe environments for students.”

The CU regents voted unanimously to pass the revisions, which now must be instituted on campuses across the state.

"We reviewed all of this with representatives of faculty, students and staff," says O'Rourke. "All of those groups are endorsing it. Everybody is coming together. I'm happy that people are coming forward and saying, 'We think we got this right.'"

The complete O'Rourke memo is below. Learn more about free expression at CU here.

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Conor McCormick-Cavanagh is a staff writer at Westword, where he covers a range of beats, including local politics, immigration and homelessness. He previously worked as a journalist in Tunisia and loves to talk New York sports.