Protecting autocratic snowflakes from freedom of speech
There have been several changes to the Board of Governors (BoG) proposed policy (which has now been approved in committee and forward to the full Board for a vote tomorrow). These incorporate some of the concerns raised by the Association of Student Governments, the UNC Staff Assembly, and the UNC Faculty Assembly.
The legal staff at General Administration is likely to be responsible for rolling back some of the really bad language and ideas. While some of those changes have mitigated problematic features of the legislation and the Board's interventions in the management of campus affairs, several very troubling issues were made manifest during the BoG Governance Committee meeting, viz:
-- Steve Long, the Chair of the Committee, openly conceded that the policy did little more than recapitulate existing legislation protecting freedom of speech. As noted below, laws to enforce laws are almost always an indication that something pernicious is at stake.
-- David Powers made it crystal clear that he is little more than a water boy for the legislature. When William Webb asked about reducing the size of the committee, and giving the BoG chair authority over its appointment, Powers stated that the legislature was asked to do so, but refused. On that opposition, Powers said he would vote "no" on the motion to approach the legislature again. Obviously, Powers is more concerned about appeasing legislators than acting independently in the interest of the University.
Going forward, watch for the problems of the legislation and the implementing policy taking four likely forms: vindictive backlash from the legislature because the BoG isn't being dictatorial enough; assaults on the campus administrations when discipline doesn't meet the "presumptive" punishments of the policy; excesses by the BoG UnAmerican Activities Committee (sorry, Free Speech committee) when the BoG radicals start defining "disruption" as everything they don't like; and suits from students/staff/faculty punished under the policy, on the claim that the application of "criminal statutes" definitions without the due process protections of criminal proceedings is a violation of constitutional rights.
All this will start ramping up soon enough, and it will pick up when the Lege finishes their purge of BoG moderates in the next round of BoG appointments.
Watch what happens going forward. Again, the BoG committee and the legislature are the likely sources of diktat. Otherwise, the analysis below is still for the most part relevant to appreciating the problems with this legislation, and now its policy implementation.
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Oops! In the scramble to endorse Everything Amerikan!, the Wilson Times and the ECU student government have once again reminded us that reading the words and understanding their meaning really does matter when it comes to the law. The 1936 warning of James Waterman Wise Jr, that fascism will come to America "wrapped in the American flag and heralded as a plea for liberty and the preservation of the constitution" is perhaps a bit over the top for this development, but not so far afield that it can't be applied to account for the unintended consequences of intellectual carelessness.
Here is my response to these endorsements of H527/S507
The Wilson Times editorial staff must not have read the words in House Bill 527/Senate Bill 507. This is, quite simply, irresponsible journalism, and the readers of the Times certainly deserve better.
Same holds true for the ECU student government, which also must have been misled by the title of this legislation.
If there are campus codes that violate the Constitution, then that matter should be settled in legal actions brought against offending institutions. Outlawing actions that are already outlawed is almost always a sign that something else is going on. If the Wilson Times and the ECU student government wants to protect the First Amendment, the partisan tribalist Dan Forest is probably not the best champion of that cause.
First, in H527/S507 there is an extension of the coercive arm of government inquisition, abrogating Fifth and Fourteenth Amendment due process protections. Those inquisitions would very likely be overturned in the first court case (and there would be many!) against this legislation: Section 116-301 (b) of H527/S507 would require that “All employees of The University of North Carolina System and all State agencies shall cooperate with the [Board of Governors] Committee on Free Expression by providing information requested by the Committee.” (Now that’s an interesting name for a committee that will in effect stifle free expression by new powers that the Board of Governors has never had before).
Given the recent partisan packing of the Board, the records of many of those former legislators and politicians the legislature in its wisdom appointed to exercise this sacred trust, and all of the silly legislation proposed to impose ‘ideological balance’ in the appointment of faculty, and even in the choice of courses students take, you can expect to see some pretty weird accusations and actions by the ‘Committee on Free Expression.’ Which brings us immediately to the second disturbing element of coercion in this bill.
Second, there is in § 116-304 a very suspect qualification that restrictions on speech can be enforced where there is a “compelling government interest.” Historically, that language is almost always used by the government as an excuse to violate the protections of constitutional provisions, and in this instance it would be most certainly used to sanction students, faculty, and staff who are exercising their freedom of speech to protest against campus speakers or visiting politicians favored by certain partisan interests. Again, this is likely to involve violations of constitutional protections of freedom of assembly and speech in the name of “protecting” people who don’t want to deal with protests and criticisms of their ideas and arguments. (Can you say, “snowflake autocrats”?).
Third, the majority party of legislature clearly wants to keep extending its takeover of the University’s teaching, research, and service responsibilities to the people of North Carolina. It is worth remembering that the University serves the interests of the people in providing a high-quality educational opportunity; it is not supposed to be an arm of the legislative majority and the narrow and parochial constituencies those members serve.
That is clearly evident in the fact that the legislation requires the “diversity office” of any University campus to be renamed to include “free speech compliance.” Several Senators and Representatives from the majority party have been at war with University diversity initiatives for a long time, and this is just an extension of that offensive. Moreover, the legislation expropriates the University’s resources by requiring diversity officers to “receive training” from the “UNC School of Government.” (Sic! The slipshod character of the legislation shows here: the School of Government is at UNC-Chapel Hill. The UNC system has no school of government).
Add to this the manifestly imperial legislation taking over the search for the UNC president, taking over admissions, and tuition, financial aid, and environmental research in H1030, stripping the governor of appointment authority to campus Boards of Trustees in H17, gun bills for campuses in H51, the previously mentioned ‘ideological balance’ initiatives such as S528, proposals to require campuses to withdraw from athletic conferences that boycott NC (because of stupid legislation?) in H728, forcing campuses to violate federal privacy protections for students when those students are immigrants in S145, etc. etc. – put all this together, and look closely at the language of H527/S507, and what you have is nothing more than another example of overreach and excess from the Jones Street Imperium.
Surely the editorial staff at the Wilson Times and the leaders of the ECU student government saw all this – they are, after all, privy to the same news that all of us have. Perhaps the Times and ECU students really think the people of this state are well served when the legislature can dictate who teaches, what research is done, whose service gets priority, and who gets to speak without being troubled by others’ freedom of speech and assembly, on our college campuses? Times readers and ECU students should decide that for themselves.
