Introduction

Higher education is the special place in society set apart to seek the truth—which requires colleges and universities to protect intellectual freedom. Too often colleges and universities place other priorities above intellectual freedom, particularly the cultivation of “safe spaces,” the pervasive surveillance of “implicit bias” and “unconscious bias,” and the suppression of speech deemed “biased” or “hateful.”

Unfortunately, many college administrators have adopted the language of academic freedom and free speech to suppress intellectual freedom. They bar vaguely and elastically defined concepts such as “racism” and “homophobia,” which permits administrators to punish students and faculty selectively, by the exercise of arbitrary power. Often they do so in the name of enhancing the free speech of “minority” voices, which they consider to be at a disadvantage. Many colleges also sponsor “free speech zones” that actually limit speech to a small area of campus, and enforce their speech and association policies selectively, enabling them to single out certain types of speech for promotion or suppression.

The federal government can and should support intellectual freedom by maximizing First Amendment rights on, to protect the exercise of freedom of speech, freedom of expression, freedom of association, and freedom of religion. The government should do this, however, while respecting private colleges’ right to remain exempt from the First Amendment and to retain greater freedom to set their own policies. Religious institutions, in particular, should retain the right to govern themselves according to their religion.

Policy Recommendations

Protect Intellectual Freedom

Congress should strengthen the Title I protections for students’ intellectual freedom.

Legislative Language: Add to 20 U.S. Code § 1011a (Protection of student speech and association rights) subsections stating that it is the sense of Congress that:

1. invited speakers have the right to speak and to be heard;
2. colleges should defend free speech against intimidation, threats of violence, actual violence, and reprisals;
3. First Amendment rights cannot be limited, infringed, or abrogated in any way by university policies to promote concepts or institutions such as “removing bias,” “preferred pronouns,” “safety,” “health,” or “safe spaces”;
4. “safety” and “health” involve exclusively physical matters, not emotional or mental ones;
5. students and faculty have the freedom to discuss any problem that presents itself, as the First Amendment permits and within the limits of narrowly tailored viewpoint- and content-neutral restrictions on time, place, and manner of expression that are necessary to achieve a significant institutional interest, provided that these restrictions are clear, published, and provide ample alternative means of expression;
6. students and faculty have the freedom to assemble and engage in spontaneous expressive activity as long as such activity is lawful and does not materially and substantially disrupt the functioning of the constituent institution;
7. access to campus for purposes of free speech and expression should be consistent with First Amendment jurisprudence regarding traditional public forums, designated public forums, and nonpublic forums, subject to reasonable time, place, and manner restrictions;
8. students have the right to study in an environment free of disruption and intimidation;
9. “intimidation” is defined as “the causing of a reasonable apprehension of injury to a person or to the person’s spouse, de facto partner, child or dependent, or of violence or damage to any person or property”;
10. student associations (especially religious ones) have the right to determine eligibility for membership and qualification for positions of leadership, immune from abridgement by institutional mandates for diversity, inclusion, equity concerning race, religion, class, sex, gender, gender preference, or gender identity;
11. colleges should protect the right of free exercise of religion; and
12. colleges should develop a written charter of enumerated intellectual freedom rights guaranteed by the college or university to all students and faculty.

Require an Intellectual Freedom Charter

Colleges and universities’ persistent abrogation of their faculty and students’ intellectual freedom has been a growing scandal for a decade and more. No public college or university that restricts intellectual freedom deserves taxpayer money.

Legislative Language: Amend 20 U.S.C. §1085. Definitions for student loan insurance program (a) (Eligible Institution) to

1. require, as a condition of Title IV eligibility, colleges and universities must develop a charter of the principles of intellectual freedom. The charter should include at least:
   1. the right of invited speakers to speak and to be heard;
   2. rigorous and effective defense of free speech against intimidation, threats of violence, actual violence, and reprisals;
   3. the priority of intellectual freedom above concepts such as “removing bias,” “preferred pronouns,” “safety,” “health,” or “safe spaces”;
   4. the definition of “safety” and “health” exclusively in physical terms, not as emotional or mental ones; and
   5. the requirement that the Board of Trustees certify annually either 1) that the college or university has respected intellectual freedom; or 2) that the college or university has violated intellectual freedom, and that it has begun work to provide restitution for that violation, and ensure that no such violation recurs.
2. Allow colleges and universities to determine the appropriate investigatory procedures and penalties to deal with infractions of intellectual freedom.
3. Ensure that this Charter will not infringe on the right of private secular and religious colleges and universities to enforce speech and association policies that uphold their mission statements, institutional religious affiliations, and statements of faith. Private colleges should be required to submit to the Department of Education, and make publicly accessible, a catalogue of their mission statements, institutional religious affiliations, and statements of faith that take priority over their commitments to intellectual freedom.

Define Sex as Biological

Activists abuse Federal Title IX prohibitions against sex discrimination to promote progressive “gender” ideology. The U.S. Department of Education, individual Title IX offices, accreditors, and colleges and universities now punish Americans who reject invented rights to “gender preference,” “gender identity,” and “gender expression.” Freedom of speech and freedom of religion cannot co-exist with rights to “gender identity” or “gender expression,” which require other people to assent to an individual’s arbitrary and mutable definition of his “gender,” regardless of their religious tenets, their conscience, or their right to speak freely. Congress cannot defend these freedoms unless they require universities to define “sex” exclusively in biological terms.

Legislative Language: Amend 20 U.S. Code § 1681 (Sex):

1. Define “sex” as “A person’s physical condition of being male or female as determined by a person’s chromosomes and identified at birth by a person’s anatomy, which is not mental, psychological, cultural, or emotional in nature, dependent on an individual’s affective relations with other individuals, on an individual’s self-perception, or on that individual’s perception by any other person or persons.”
2. Add a section stipulating that “No part of this section refers to concepts such as “gender,” “gender identity,” “gender expression,” and “gender preference,” or to any concept dependent upon mental, psychological, cultural, or emotional status, dependent on an individual’s affective relations with other individuals, on an individual’s self-perception, or on that individual’s perception by any other person or persons.”