we have susan cruz who has a background in short film and documentary and she decided to go to law school to study the ways that can't do to chin protects filmmakers. she did a free-speech fellowship at the center for the protection of free expression. she's also have some other very cool civil rights internships including transgender legal defense and education fund as well as the aclu lgbt and aids project and currently she is at the foundation for individual rights in education. professor kerry brian melear or kb as i was told earlier is professor of higher education at the university of mississippi. his areas of expertise are college and university law, finance, public policy. he is a member of all kinds of things. he's on the honors committee of vice education my reporter. a review editor come in

contributing editor at the higher education law and a member of the editorial board of the journal cases in education. he has worked as a higher education policy analyst at the florida legislature and as a turkey says he had for the florida postsecondary education planning commission. we also have leonard niehoff, professor at the university of michigan school of law and a counsel to a law firm. he is the author of numerous publications in the field of first amendment law and higher education lot and for more than 30 years is litigated cases on behalf of the media entities and colleges and universities and he got his ba and jd from the university of michigan and studied at the ecumenical theological seminary. each panelist will take for about 12 minutes. i will ask a couple questions and then it will be up to you ought to follow up.

>> good afternoon and thank you for inviting me to participate in this important symposium and for including me in such distinguished company. and accepted the invitation, i didn't know i would be the follow-ups beaker to a charming, brilliant living jurisprudential bloodshed and how they known, i certainly wouldn't decline. i view impart my job as being below expectations and i think you'll all agree i'll do it. i want to use as the launching pad for my remarks in 1999 federal district court decision. as all of you probably know, the seminal case on campus speech codes has just recently passed its 25th anniversary. i thought the symposium might be a good occasion to look back,

and see where we were, assess where we are and ask whether we made any progress in the way in which we think about and discuss these issues. spoiler alert, the news is not good. as you will recall, and no come a federal court found unconstitutional a policy that the university of michigan have a.did in response to a number of racially charged incidents on campus. as a legal precedent, i don't think they actually offer many extraordinary insights. the policy was pretty clearly overbroad and vague and it was dead on arrival at the federal courthouse. we don't need to perform any elaborate autopsies today to confirm the factory because of that. so why should we care? there's several reasons. first, dell was an early excursion into territories that have now become familiar to us hear the case was therefore

decided before controversies had grown in crested with some of the concepts that bring them today. second, although the university policy and doe was badly flawed, it seems clear that this active in faith at least i believe. the issues the university face are real, significant demand in kind of odds. similarly, it seems clear to me the plaintiffs i could in good faith if i had been teaching a university of michigan when the challenge policy had been in place. i would've had concerns, too. these days when does on each side of the debate are so eager to character does on the otherwise clueless or even dallas, it seems refreshing to consider a case where i think both sides have a point. third, the passing of 25 years to write an occasion for calling

into question, rethinking about issues now better than we were thinking about them then? it does seem fair to expect some forward movement over a quarter-century span. so have we seen any? i have three use. the first is that send doe was decided, we have indeed been significant change in how we ain't about and discuss the inflicting values of speech and equality on campus. the second is that the changes overwhelmingly for the worse. the third is things are unlikely to get better anytime soon. it is a grim and discouraging assessment that i bring you today nor is it likely to win me any friends or perhaps any additional invitations to symposium. because as you will see, i believe the blame for this situation lies with both sides of the debate. i think everyone has had a turn of the switch in creating this train wreck.

i think everybody has tossed some fuel on this dumpster fire. before we get too far, i'd like to remind you what happened in doe. the university of michigan community was in the late 1980s when a number of racist incidents occurred on campus culminating in a rash in the early 1987. there's a number of examples to give you one. it involved the distribution an anonymous flyer they used a series of racial epithets regarding blacks and declared, quote, open season, unquote on them. the university president issued a formal statement condemning the statements that the state legislature held hearings about racism on campus. some 48 witnesses testified about racial tensions in issues in the university of michigan campus. in response, the university set about drafting an anti-harassment policy.

the final version breached very broadly. it applied to classrooms, libraries about laboratory, recreation and study centers. in these various persons are subject to discipline on a number of grounds including trade engaging in speech that stigmatized orbit denies someone based on a characteristically race, ethnicity, gender or sexual orientation. sanctions depended on the gravity of defense and they were potentially severe. the university also issued a guide and in some ways the most interesting thing about doe is the public eye rather than policy. igad reported to be an authoritative interpretation. a guide offered troubling examples of speech that it deemed discriminatory or harassing. some examples above speech that appeared ready clearly to be protected under the first amendment. others above speech that didn't seem to actually fall within the broad language of the underlying

policy. at the time the policy was adopted, john doe, our anonymous plaintiff is a psychology graduate met the university. he taught classes that export controversial areas that he worried some students would be u.s. accessed, concerned that his teaching might violate the policy, he sued. he was represented by a law professor, bob settler of doing state university. judge abram: who presided over the case included the policy was unconstitutionally overbroad. he also wrote a number of critical terms of the document like stigmatized and victim has rendered the policy unconstitutional a bag. in the course of the litigation, the university withdrew some provisions of that policy and it tually withdrew the guide in its entirety. but it would be fair to say these maneuvers did not impress judge cohen. indeed, judge cohen had a number of grievances at the university and how the case was litigated and so forth in the catalogue

them twice. once at the end of doe and again in a law review article he later wrote about the case. one gripe made in retrospect strikes us as ironic. towards the end of doe, judge cohen suggested at the end of his policy michigan might've found a great deal by looking to experiences of another great university, gail. i'm not sure today anyone on either side of the debate thinks the perfect solutions to these problems reside in new haven. but here is the point. although judge cohen found the policy unconstitutional and on a variety of grievances with the institution, his opinion reflects genuine respect for the university's concerns, for the complexity of the problem before it. indeed the first sentence in doe in the case strikes down it is an unfortunate fact because of our constitutional system the ideals of freedom and equality

are often in conflict. the difficult and sometimes painful past of the legal institutions is to mediate the appropriate balance between these two competing values, unquote. in the same spirit, the opinion concludes by recognizing the university's obligation to ensure equal educational opportunity to all the students, unquote and by expressing sympathy with that goal. even the lawyer who represented doe voiced similar views on the log of your article that he published about the case. silica were doe what does 25 years ago. it acknowledged the value of both free expression and equality. a recognized collisions between these two values were inevitable. it understood that mediating the conflict between these values was hideously complicated. it grasped that people of good faith would make mistakes and trying to work through those tensions.

doe was in many respects the perfect starting point for a civil informed, respectful, project and dialogue all towards the end of that dramatically improved campus environment. well, so much for that. so where are they now? doe raise concerns about a hostile suggestion nationally has got considerably worse. the number of racial harassment in its report at the department of education roaster manically from 2009-2014 and studies estimate only 13% of such incidents are even reported an campus authorities are very high. furthermore, studies suggest the problem has grown worse as affirmative action has become less available in some jurisdictions as a tool and campus diversity has suffered as a result.

in any event, there is certainly an increased awareness of such incidents. social media has facilitated constant widespread communication about the six. said he would consider, for example, the relatively well-known hash tag movement at at -- for black students use the challenges they face on campus, some conspicuous, so much slower. this consciousness also has to do with the shifting understanding of how harassment, discrimination and marginalization have been paid for example, we have a better sense now than we did in 1989 of how even an advert micro aggression can disrupt a student learning experience. in 1987 when doe was tried, we knew that the kook klutz claim uniformed that was hung from a dormitory window at michigan was a racist act. just as in 2015, we knew that the statute of james meredith in mississippi was a racist act. but today you also have a much

more refined view of the scope of the problem and it turns out to be even deeper and more daunting than we understood 25 years ago. nor are those dynamics exclusive to racial issues but the most recent data regarding the number of sexual assault on nation campuses are shocking. in 1989 the concept was still relatively new. 25 years later we have a much better understanding of the extent of the big and the station and around the issue of trigger warnings is engaged in a debate about how to deal pedagogically with the statistical reality that almost certainly more than one of our students will be suffering under the trauma of such an experience. universities have serious work to do. we have serious conversations to get it done. serious conversations on these topics are hard to come by. the groups and individuals to raise issues are settled as we clean at whiners.

calls for greater awareness, sensitivity and action are met with accusations of political correctness, it is not yet emerged in 1989 and that i personally would happily sending to a lazy minded label that people substitute for an argument. we've come a long way from the balance and stability to doe to nowhere good. furthermore, no conversation about these topics can be conducted because discourses shut down ironically in the name of free speech. a concern is raised about how to do a speech that offends someone to the point of interfering but we are told we can even air the concern to figure out how to address it because freedom of speech stands in the way. the first amendment, the grand midwife with ideas is now routinely used to abort them. as you may have gathered, irony is one of my central themes.

is on the other side of not serve the conversation will be there. social media has played a role because they allow for the airing of grievances that are serious, thoughtful and legitimate, but also those that are petty, self absorbed. those who tweaked before they think they make themselves into easy objects of parity and discover they've become an advert co-conspirators of the trivialization of concerns. we see the paradoxical impulse to sentence people in the service of the first amendment. when you think someone has a right to photograph your protest because of freedom of speech, you're confused. when you bought them from doing so can we are deeply confused. when you think freedom of speech gives you the right to intervene you are dangerously confused. they often fall subject for every action, there is a non-equal and opposite

overreaction. we tend to think big problems call for bigger solutions so of course the policy in doe turned out to broad and out to brought into too vague as to many such policies it after all it's counterintuitive to think you could address a complicated problem in another way. the other way, the miramar cautious ways of the jurisprudence wants us to think about it. maybe you can see what i'm skeptical things will get better anytime soon. besides as fryman, language and concept and appear to become perversely comfortable they are in a highly efficient mechanism does exist for making trouble in the comfortable people uncomfortable. it is called freedom of speech. as they say, whichever side you're on, the other side doesn't get to use it. thank you. [applause]

>> good afternoon. i am delighted to be here and i appreciate the generous invitation to join you. i would like to thank you for the opportunity to be present. also, we had this conversation knowing that you have to follow justice stevens is something to think about. happy to be here. in that time today, i thought that i would do is provide a brief revisitation of some of the key u.s. supreme court cases that are the drivers of the analytics for how we observe issues related to student free-speech question out of touch on those, develop or terms and then a specific case that is

interesting and illustrates the power of litigation which student feel they have been so great. why don't we begin with the magna carta. i will cover to much detail because we taught about it as justice stevens. as we know, black armband is considered to be a symbolic speech. it is the material disruption standard that we all notice. someone earlier and one of the questions which we don't hear colliding with the rights of others. that is a very interesting question i think to be explored at another time. we know that is developed in 1969. ever then fast-forward to 1972, healey versus james is a case involving a public institution were a student group sought to establish a chapter of the students for a democratic

society which was a somewhat controversial organization that had been suggested to incite violence on college campuses. the administration grew concerned about the application, denied on the basis. the supreme court concluded that just because an idea is unpalatable does not mean it can be retreated. that does not enter into the ambit of the first amendment. that is our second speech ruling and i want to read you a little bit of the language from justice powell. the presidents of the court leaves no room for the view that because of the acknowledged need for the first amendment protection should apply with us for some college campuses than in the community at-large. quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more than in the community of the american schools. the college classroom at its surrounding environment is particularly the marketplace of

ideas then we break no constitutional ground in reaffirming the nations dedication to this safeguarding academic freedom. we move forward to 1981. this is the case involving a group of students and religious questions. a group of students and religious organization requesting the use of facilities at a public college campus out of fear of running the establishment clause, the request was denied. the supreme court concludes that was an improper denial because the students were discriminated against based upon the content of their message. this is an important term. you know the foreignness they are. student organizations exist. if some are available, i'll should be equally not discriminated against based on content. then we fast-forward to 1995. rosenberger discussed as well

briefly just to see sense. another case involving a religious request asking for money to produce a publication called wide-awake publications that was religious obviously in nature. for fear of writing the establishment clause, it was denied in the supreme court and takes the further position that this group was discriminated against narrowly or a similar viewpoint. the difference between content and viewpoint is always a question and they are quite certainly related in my little bag of tricks and am working with students, i learned to use the context of football because it works very well and in this room in a foreign, we can talk about anything there is to be discussed, but we cannot talk about foot of. i've been limiting a content

discussion. however, in this forum we can discuss the volatility in 50 years, but we cannot discuss the university of miami football as a viewpoint restriction and the nuance of the revolt ends. that is further narrowing the viewpoint restriction and a case involving students who have checked japan mandatory student fee. so with god content. we've got viewpoint. these are the element of the analysis and litigation when these cases reach the courts ends today's make the decision to litigate. very briefly -- good, okay, excellent.

so, rock for life versus u.n. d.c. this is a 2012 case i bring up just because i think it is interesting in this particular circumstance, a group of students who are antiabortion student groups sought to display what is called a cap display, which was an asset graphic photographs that the abortion process in a way to bring light to the controversy. on this particular campus public institution. originally, they thought to place this in the campus and the academic area. they were concerned that the larger society and what they call a mini gap which was fowler. in any case, from a facilities did, they were moved to a common

area that included a student center and a number of resident halls, which saw pretty high foot traffic. but then, there was concerned there about inclusion of foot traffic and other issues said the move to another third location where there is considerably less traffic is sent. davis later departed and later have another display that they wanted to go back to the dormitory and the student center. this then was denied again and they did not pursue. one important thing to note is they also requested security that didn't ever emerge or go anywhere. so before circuit in hearing this case made -- let me just restart that whole thing.

the students files due to initially and one of their claims was a first amendment speech code violation caught their concern at ministry delayed that the display might emotionally harass a student and the institution had a speech code and place it out with the emotional harassment. you could tell that sounds a little bit boss. so when the student group filed suit, in order to address their claims, the university changed that policy and rewrote it so that emotional harass it was not very broad language. that is one element of this that is interesting. a policy can be identified and is acted upon within institution realizes the language is on the broadside. there you see a group of students moving forward, setting

in shaping policy, using their voices to do so and further in sadness, ultimately the administrators involved were granted before circuit did include that the students were discriminated against on the basis of conduct and the content of their speech. i think this illustrates the many different ways that students can speak on the college campus. if you think about it, they are myriad. bathroom, curriculum, athletics, theater, newspapers. the list goes on and on.the student organizations. this is a topic and one for which higher education must be mindful the other way. the proliferation concerning free speech rights related to students and others continues to grow because there are so many

gray areas. i'm going to say the word social media. i'm going to mention those because that's a brave. susan is going to discuss social media issues because they are fascinating and important and something that those of us who are part of the college university community should be watching very closely. without i will return to my seat and enjoy the rest of our session together. thank you. [applause] >> thank you, professor corbett and thank you to miami long review for having me here tonight. the foundation was founded over

16 years ago and since then racing free speech on campus that was also seen almost unbelievable new threats to free speech. the first amendment as an incredibly broad range of speech, the vast majority of speech to chill year in college campuses clearly protected by the first amendment, but no matter how clear the law is, free speech and practice requires constant vigilance and defense and proactive measures. i think with respect to free speech on campus, there's probably always going to be kind of a good news bad news situation. i'm going to talk about some of the good news and some of the bad news. for most of the existence -- for most of china's existence, we systematically analyze each code on the hundreds of college campuses across the country.

any written policies that prohibit speech there would be protected from government if it occurred off campus. public schools are by the first amendment and private colleges would just expect them to follow through on any promises they make with freedom of speech. keeping track of speech codes is one way that we can quantify the danger freedom of expression on this college campuses and identify trends over time. in recent years, we have seen many administrators provide the code so that free speech is better protect it on this campuses. we seem especially the number of extremely restrictive policies go down and the number of campuses with no restrictive policies go. a lot of progress we've seen comes from talking to administrators and we really like making progress this way

because they can be faster and it's free and it's not us ensure the administrators really and why the changes they are making are so. unfortunately though, not all administrators want to work with free-speech advocate. a lot of families and refuse to back down after we publicly call them out on obvious free speech violations. two years ago, fire launched to stand up for speech litigation project and so far through this project we've helped coordinate 11 lawsuits schools that committed first amendment violations and some of the facts of these cases are just bewildering. we have several cases that revolve around students being told that they couldn't simply hand out literature quietly and peacefully in the open areas of campus on public college campuses. these are things like advocating

for animal rights or petitioning against nsa spying or even handing out copies of the constitution. they were told they couldn't do these things because they weren't in the so-called free speech zone where they had gotten permission from administrators and dance. this is one example. this is the modesto junior college campus and the little red circle is where a student was standing and the orange circle is a tiny area on campus that he was allowed to hand out literature and. that is just one example. this is a common scenario of how bad it gets on college campuses. now students and professors shouldn't have to sue in order to enjoy their first amendment rights, but the good news in this situation is out of the eight cases through this project that have been resolved so far have all been resolved in favor of free speech. most of them are actually settled before they even got to

court. so it seems like summit and its traders at least are slowly learning that it's a lot less costly and takes a lot less time to simply abide by the first amendment instead of digging in their heels and going out to core. but even though i've been some school is finally getting a handle on first amendment law, there are still some very serious free expression and i'm going to talk about two of them today. they both have to do with the office first amendment rights. part of the department of education agency responsible for enforcing title ix, which prohibits discrimination in schools that receive federal funding. for colleges, it's all but four colleges nationwide are the federal grant of some sort. now i also want to say that if a

school does violate title ix, they can have their funding taken away. even though this hasn't happened yet, the threat of that happening is enough to keep school. this is the first thread i'm going to talk about, what my colleagues and i called the blueprint. in 2013 the university of montana entered into resolution agreement with the department of education adjusted this included the investigation to the university of correlation of a mishandling allegations of sexual assault. even though the investigation focused on assault, the letter that came along with the agreement also dictated how the university of montana was supposed to define sexual harassment and the letter also said that it should serve as a blueprint for colleges and universities across the country dealing with these issues.

according to the latter, sexual harassment should be defined as any unwelcome convict of a nature and conduct includes verbal combat or speech. any unwelcome conduct or speech of a nature. now when you look at this definition i want you to think about whether you ever pulled a knife and breezy joke or talked about "50 shades of gray" at lunch or maybe even just discussed the fact of the supreme court case lawrence versus texas which dealt with laws. if someone on campus overhears see how and may be as offended or maybe just doesn't want to hear you talk about those things, that your speech harassment. we know how different everyone's opinions are, so it's not so unlikely that someone will be offended by what you are saying. i know it sounds extreme to call you a harasser in that context,

but look at this definition. anion welcome combat. there is no limiting factors at all. that's why it's such a serious threat to free speech and that's why then can't additional. we can compare that definition to the definition of student on student harassment that we get from the supreme court in the 1999 case davis versus munro board of education. it defined harassment of conduct that is so severe, pervasive and objectively offensive that it effectively bars victims access to an educational opportunity or benefit. if we think about benefits from before, none of them come close to being so objectively bad that they will keep a student from receiving his or her education. they are all constitutionally it, but i think that illustrates

a huge difference between the supreme court definition of harassment and the definition that ocr is trying to promulgate. some of you at this point might be thinking, well, surely a school would actually enforce a definition that broad. since the blueprint was published in 2013, schools have been adopting this incredibly broad definition of sexual harassment word for word and they are enforcing it against students and professors to punish speech that is unequivocally protected by the first amendment. a lot of times it is a valuable part in an important conversation. so for example at louisiana state university come a tenured education professor got fired essentially for occasional profanity and class and right now as part of the stand up for speech litigation project she is doing to defend her first

amendment right. but what happened was that she is teaching future teachers and she wants to prepare her student to be able to deal with all sorts of different kinds of parents they might encounter in their job and that includes parents who might say potentially objectionable things. show ye she used the word pussy a couple times. they said using this language creates a hostile environment that amounts to sexual harassment and unsurprisingly the definition of sexual harassment tracks the blueprint. this is the kind of thing that happens when you have incredibly broad speech codes like this. unfortunately, this isn't the only way that ocr is impeding free speech on camp this. a lot of you have heard students across the country are asking for their colleges to ban anonymous social media.

at the university of mary washington, some students complained to school hadn't adequately responded to racist and sexist messages in this prompted an investigation by the office for civil rights. the question kept coming up, could umw being hack? a lot of schools have already tried to ban the yankee hack and ocr by investigating this case is basically giving schools another reason to try to ban all forms like anonymous social media. i want to point out a few important things to remember. the first is people were concerned about that's been posted on yak yak. threats and harassment properly defined are already prohibited by law and we've seen cases where it's a and even work with

the fbi and school and have them arrested. there started procedures in place for that. even speech that could be called hate speech is almost always protected by the first amendment if it does actually rise to the level of the threat or harassment through the lies clear about this and has reiterated time and again that provocative speeches often a critically part of public discourse. but those two things in mind, it should be clear that the inning at a public school really doesn't serve any lawful purpose that isn't already served by the laws in place. thankfully the umw president seemed to understand that and he denied the university's wrongdoing, but he also said as

public university, umw is obligated to comply with all federal laws, not just title ix. it is a content-based prohibition on speech. students added that to their complaint. they said these comments constituted retaliation. that ocr is not just investigating the school, but also investigating the president. there is something seriously wrong when he basically landed in trouble for stating that a public university obligations are under the first amendment. i'm going to wrap up by saying during the rest of the panel here or the panel this weekend is probably during the q&a session you will hear people say censorship is coming from all angles.

administrators and even state legislatures are not all true. a branch of the federal government coercing schools and to punish and protect a protection all across the country in one fell swoop. it is a significant danger to free speech. but to run on a slightly less depressing note, i will say this. fire has been amazing results achieved when students and professors like all of you guys decide to fight back. i sincerely hope you will consider doing it out and help us fight back against serious threats to free expression on campus. thank you. [applause] >> so i'm going to throw at a couple of questions to the panelists and you can insert either of them are as often the case, neither of them.

i want to focus my question more specifically on hate speech codes. in this sort of clash between liberty and equality, i think i heard one side that the risk of a spirited speech codes is that they are going to kill speech and we are going to risk losing valuable viewpoints in the marketplace of ideas. and on the other hand, there is an argument that the lack of these kind of speech codes might deny targets of hateful speech and equal opportunity to learn and participate in campus discourse. these are both sort of postulated harms an ipad or if anyone has any actual empirical evidence supporting the claims of these potential risks. that's my first question. the second question is a little bit more about terminal, sorry.

and that is free speech doctrine sometimes audience rates not here actually trumps speakers right to speak, even when what they are saying is otherwise protected speech. i have two things in particular in mind. first i have a captive audience doctrine, which is the idea that in certain locations such as the homecoming you kind of have the right not to be bothered by offensive speech. so that is the first audience doctrine. the site had is that in the work place, right, the harassing beach and they can be just speech, harassing speech that creates a hostile work environment can be made illegal, even though the speech should be perfectly legal outside the work place content and it is made

illegal because otherwise when men or whoever the target is wouldn't have an equal opportunity to participate in the work place. thinking about these doctrines have been free speech jurisprudence, i want to have you think about how they would apply on campus. if you think about students on campus, their dorms are sort of their home in parts of the campus is sort of their work place. as just wondering how you think this particular doctrines might play out in this discussion of speech codes. >> okay, i would like to first address the work place in the university because it is true that there are different standards for sexual harassment in the workplace as opposed to the university. it's very important reasons why that is so. in the work place, depending on

what company as they have a specific goal in the paper company make a paper, for example. that poll is usually singular and anything that gets in the way of that is prohibited. the university cause discussion. the goal is to bait and hearing new ideas and thinking about new ideas. it makes sense to air more on the side of more speech in that situation were speeches of is a part of what people go there to do. people don't usually go to work to talk or hear new ideas. they go to produce something on some sort of specific out. to me it makes practical sense that the standard for sexual harassment would be more speech respect to in that context. in the home i think in our homes we can keep people out as more

of a private space, but fire deals mostly with either situations where someone has their own speech limited in their own home or their dorm room were situations where students are sent her an out door areas of campus. i think maybe the other panelists can speak more to that. >> i was going to revisit a question number one, which is a randian parable data regarding the differences here. i'm not aware of that, which i think is unfortunate. a good point to make that we should pursue more empirical study in that regard. so that is my position there. are you aware of any empirical? >> to be honest, i think a lot of the cases we deal with is so clear that either someone access

to their education, maybe they are so very clearly denied so very clearly not denied they can't think on that for a period >> okay well, a couple thoughts. the first is i think we all know, hate speech is actually not a category of prohibited speech recognized by the supreme court of united states patent number cap about hate speech, i would suggest we don't do what we are talking about. we would have to define what we meant by hate speech, so there's some things like, for example, harassment could be a form of hate speech. threats could be a form of hate speech. the serb recognized categories and reject his speech in some cases by the supreme court of the united states. the question that empirical evidence. we need to see the threats made to the life force before we concluded we could prohibit them

or i think a hostile work environment evidence is essential before we realize some of ability to do their job effectively when they're constantly surrounded by racist or sexist beach to see empirical work that. i'm a little more suspicious of empirical evidence because they come and go with convenience. i do think that one of the things that intrigues me is i'm not at all convinced many of the solutions here live in the legal world but a normative and moral world where we have agreements about how we conduct ourselves in what is critical that we are able to have those conversations took up people becoming unduly alarmed and turn it to prohibitions. i'm your captive audience point which is also really did, just because i don't think that was spoken to. in the state of michigan we have a case involving a professor who just gratuitously used profanity and would go off into storage of

his own exploits and things like that in a class to which was completely unrelated and the students had to sit there and listen to this. there is no pedagogical information. it is what he felt like doing and school took action with respect to that end i think there you have a captive audience. we had a flip of that in the case of the michigan were a student turned in an assignment in which the fantasized about the instructor and the student knew the director would have to read the paper. so you arguably have a captive audience in the other direction in the context like that. this is very context driven in education gives us other issues. >> we will open it up to questions now.

>> hike on the thank you two other panelists for being here. thank you as well for moderating. my question is sort of related to those who try to suppress free speech and you had mentioned sort of the second area. the way i see it is there's sort of two forces that are going against free speech on college campuses. when you have the administration worried about their brand and don't want people to be saying things bad about university are projecting viewpoint that perhaps bring them to the national spotlight and that may inhibit free speech is often what they enact. there's also the other students who disagree with whatever viewpoint is being expressed. this is alluded to with the situation where journalists was not allowed to film the protesters going on there. my question is how we continue to go forward and fight the institution that tries to prohibit when fellow students are also being part of it.

is that a trend that's just been more recent and you think it will continue and what to do about it. >> from my perspective on that cover the ideal framework to his administrative decisions and policy development is we are seeking to strike the balance to protect the free speech yet to provide the efficiency of operation required to make the institutions and that's the ideal framework and also the way of the litigation comes from the balance in their. when policies are written in a fashion, it's not always that comes from a perspective that is malicious and policy may be crafted so yet is written in such a way making it unconstitutional. the third factor that i think falls in to this question of law vehicles that are moving in free speech, which we don't know

anymore but i'm sure we'll talk about. that's one perspective i would add in there, that is finding the balance is key. it's not always easy. cases will demonstrate it's not always easy. >> i think another strategy especially when we are seen and to just try to remind everyone of the reason we have such broad free speech and explain to people that if you are trying to censor other people right now, think about the fact whatever rules you lay down are going to be used against you. that is just a fact of life. you can see by looking at, for example, that censorship literally goes in every direction. the matter what your viewpoint is, i swear i could find on case for someone with the viewpoint, literally on a topic being discussed on college campuses, someone has been sent there.

reminding people to sort of flipped the situation in think about how they would deal with that also could be helpful both in dealing with administrators and in dealing with students. >> suddenly troubled by the question because i think you're trying to tempt me to say something positive. i will succumb to it. this is what i think. i think educators are good at speech. students are really good at learning. both educators and students are really bad serving regulatory agencies. and so i think that where i see the space-bar hope is in the educational process. there's something inconsistent about trying to regulate speech in the interest of another interest. but there's nothing inconsistent about education people about the value of free expression and about all the ways in which we discriminate, harass, offend

other people at an unsettled their learning. to me what is essential as we are able to talk about those things as productive conversation about them and the isolation that i described earlier in the labels and the easy ways of dismissing dialogue are deeply pernicious and district is. >> question for susan. ..

>> that it is sexual harassment. sexual harassment is a legal term. in order for it to be sexual harassment that is actionable and needs the concept that has to be severe and pervasive. that means to change it to raise if one student shows up in blackface and yelled racial slurs, that's not racial harassment. it's only when it happens a severe pervasive level happens over and over and the university ignores it. i think that difference is important and educational because recognize employment context as well. many of us who are worried our students are being mistreated, the racial and sexual harassment are not being habitable our enormous fans of free speech. i teach a class on sex crimes, criminal procedure the first that i've talk while driving while black. i use profanity as well as just

having students talk honestly come and get we don't see, that because of the simplistic view i think some of this is a presentation but far more generally is offered that this is sexual harassment ignores really the focus. it's wind patterns emerge. so i am pretty pointed point but i want to your response because i do think that among a lot of us educators, getting to the other point, that has never been this portrayed conflict between free speech and sexual harassment because sexual harassment law and racial harassment law is often hard for plaintiffs to win precisely because they can't meet that requirement. they can't show the institution is to literally turn a blind eye over to a. maybe the ocr could do things better. i just feel like the simplification is being repeated on both sides of this debate of

what sexual harassment and racial harassment. >> that's a good question. a huge part of the problem is really that ocr has, over time, announced different definitions of sexual harassment into educational context. so the our ocr documents that have a definition of sexual harassment that's not exactly a davis standard but much closer to the day the standard, and are much fewer first amendment problems with that definition. for example, in different guidance documents did you use of the severe and pervasive language. however, the problem occurs when schools are confused about what standard is supposed to use it and they are going to be overly cautious because they don't want to be investigated by ocr and they don't want to have to funding taken away. even if they get a hit ocrs going to start investigating if they don't have a broader

definition, they're going to adopt that definition. like i said reason colleges across the country use and enforce the very broad definition of sexual harassment that i had up in my powerpoint presentation. they are not all reading dave is thinking well, ocr just told montana to this definition but the supreme court said in 1999. they don't all think about things away. they see this letter to montana every think they're going to get in trouble if they don't adopt exactly those words so they do that. regardless of whether those policies are actually the policy that schools need to adopt legally in order to comply with title ix, if a school has those policies in place and they are enforcing them, and many students are getting punished for constitutionally protected expression. so the moral is really until ocr is 100% clear on what the law is and what schools have to do, schools are going to be doing

things that are unconstitution unconstitutional. >> do you see a link between the increase in schools efforts to limit speech, to the opposite trend out in the general population in terms of hurtful speech being far more common and vociferous nowadays? >> so let me quibble with the premise of the question. i don't think, maybe there are some institutions where people

sit in the box room and brother heads together and tackle evilly and say how do we restrict speech today? but i don't think that's the enterprise. i think the enterprise is to our problems floating around in the world that come onto our campus. they disrupt among experts over students. students are concerned. how do we respond to that in a responsible, sensitive and constitutionally appropriate way? we? that's a serious challenge. i don't think the increase isn't increase for the desire to restrict speech. i think the increase isn't increase the desire to respond to increasingly challenging campus environment. i think the events of the world, of course creep onto the campus. watch what happened after ferguson and the way in which the events in ferguson change. conversations on campus lead to certain kinds of sensitivities about issues that were going on in campus that had not existed in quite the same way two days

before the ferguson events happened. so i think the link, you're exactly right that there is a link between what's happening off campus and what we can see happening on campus. i would resist this is section -- resist the suggestion the link restricts speech. i think it drives the desire to try to figure out how to respond appropriately to an extraordinarily obligated world. >> i would like to wholeheartedly agree with it. in fact, you still might find online about some nefarious thing happening in the backroom. as i mentioned earlier the real role for administrators is not to claim to try to restrict speech but to try to balance speech in a way protects the students rights and also allows institutions operate as efficiently as possible. so it's a difficult balance. >> good afternoon. one of the questions was how the

workplace doctrine which it out on the college campus. you frame your responses or in the context of the universities being a place to promote sharing of ideas. the reality is most students are on college campuses to get the job training they need and get skills ready for the workforce. would that change your analysis to the question? >> i think that if your goal is just to learn certain skills and not to hear different ideas, you are private schools that you can go to we are, because private schools are allowed to enact speech codes they want as long as there up front about it and don't promised free speech and deliver something else. to our universities where you can go and they will help you fulfill your goal of not hearing ideas and just learning skills. but i guess i would say that id

of university is at odds with what the supreme court has said again and again about the purpose of the university, but also at odds with the vast majority of colleges, even private colleges, set themselv themselves, advertise themselves as places where everyone would hear new ideas and debate all sorts of different topics. i guess we can agree to disagree on the purpose of universities, but schools need to at the very least advertise themselves as whatever they are. like i said, the vast majority of colleges advertise themselves as places where people will hear new ideas. >> my question is for susan. you mentioned yet the act. i'm confused about why we want to protect that sort of speech where it's going to able to post anonymously and say really

anything about. maybe i presided bad experience with it in college. i'm was not in a sorority but i know that people were in sorties were constantly being talked bad about the app and it would affect the way that we all saw each other on campus. i want to know why you think it needs to be protected? >> that's a good question, and it's not that we particularly liked the speech that's happening. when my colleagues and i assess these cases we really try cannot even make a value judgment on the speech a lot of the time, but the problem is that if we start censoring entire forms for expression or even if we try to differentiate between the hurting one person or hurting another person, then we are going to lose a whole wide range of speech and a lot of that could be really helpful speech.

historically a lot of things have been published anonymously that ended up being incredibly important for the founding of the country and setting up our government at all sorts of things. history would've just been so different if people didn't have the ability to speak anonymously. i think anonymous speech, he can be used to be extra but it can be used to make bold stances were there necessary. there's just no way to really separate those in a forum like this. it again come if there are two threats or harassment that rises to the level of davis our ocrs better standard, then there are things that can be done in accordance with the first amendment law. but when it comes to just hurtful speech or ideas that you

disagree with, free speech advocates tend to say that the solution to bad speech is more speech. and so we really encourage people to speak out and to explain why you disagree or don't like that speech are why people are wrong. it doesn't always get exactly the result that you want, but the alternative is it risks shutting down too much speech that might really help society. >> one more question. >> thank you all again for coming. my question is also on the topic of the idea of colleges being a place for the marquis of the disc is particularly import and we didn't have a lot of discussion. my question is whether, for all of the panelists i guess, whether all views necessary should be protected, particularly in terms of hate speech.

maybe that is speech that is not worthy of first amendment protection but i would like to hear your thoughts on that. >> well, i think that it's very dangerous to start going down that road. because sure, maybe there are some key points that these days maybe the entire room or most other encoder great it's just not a valid the viewpoint, but historically people felt the same way about black people not being slaves. there's always going to be different viewpoints. historically there've been so many viewpoints that seem completely unacceptable at the time, but now are the norm. i think that it's impossible to know how he was acquitted change over time, but it's also impossible to set up a system

where there is someone making that distinction who's always going to be right. i personally would not trust any person on the earth to be arbiter of what's an acceptable viewpoint and what's not. where are they going to come down on marijuana legalization or gay-rights? you can't know and part of the reason why the first amendment was written was because we know not to try people in power to make that distinction. >> here's a personal example from my perspective. driving to the airport to mississippi to memphis to get here. just the other day. i don't know if you all do this but i often tune in to this radio station, the philosophy of which, with which i differ greatly. and i did it just because it infuriates me. [laughter] and so i was driving along about two careening off the road listening to this durable,

everybody myself that i did it because i have to reiterate in my own mind that i don't agree with this and i don't appreciate it here but i do appreciate this person's right to have that opinion. that's how i would respond to that. >> that also just reminded me of a couple points i want to make. which is that if it doesn't point to should change appointed a conservative or purposes. used in the other person point of view better and so it makes it more able to argue against them and maybe persuade them. the other thing is that honestly, racist people are going to exist forever. that's just a fact of life. would you rather know who they are or would you rather -- [applause] >> might be best to end there.

but not having any judgment, let me try and keep it is framing. i completely agree with susan that in general the remedy for the speech we dislike is more speech. i think that's the great principle. i think it's usually the best principle. i resiste resist the idea that e only principle or sufficient principle. if someone is threatening you, physically threatening you, we don't say threaten back and let's see how it works. there are circumstances where we've reached the end of this principle that is our position. i think what's helpful is to realize that when it comes to speech the idea of restricting it is where we go last. sometimes that is romantic goes with all of the things failed us, but i think the important thing is to have conversations about windows locations rise to understand. >> thank you very much. [applause]

[inaudible conversations] >> the u.s. senate gavels in today to continue work on a $37 billion energy and water spending bill. they will take a key procedural vote for the third time an attempt to advance the legislation. that vote is set for 5:30 p.m. eastern. the house is back tomorrow to take up a series of measures designed to combat opioid abuse. later in the week they plan to amend the senate passed all good deal and then go to conference with us and. live coverage of the house on c-span, and, of course, the sent here today on c-span2. news out of north carolina with the governor announced a lawsuit against the justice department getting with transgender rights. the "new york times" writes governor pat mccrory escalate

the nation's clash about transgender rights and sued the justice department which said last week the state had violated the civil rights act of 1954 went passed a law that prohibited people from using public restrooms that do not correspond to the gender listed on the birth certificate. the government accused the justice department of a radical reinterpretation of the law. they said the loss by the access provision was a bulwark against sexual assault but critics many of them demanded a full repeal said that section of the law effectively allowed this commission against transgender people. you can read more about those actions at nytimes.com. >> tonight on "the communicators," republican fcc commissioner michael o'reilly on several key issues facing the fcc like net neutrality, spectrum auctions and set-top boxes. he comments on the political

divide within the fcc. is joined by howard buskirk. >> the direction from leadership including the chairman to take the most aggressive, leftist approach to policymaking, these little ground when that becomes the first primary goal of the item, when the policy of aggression to want to go becomes the first goal rather than any consideration of any collegiality or any kind of attempt to bring or develop consensus, you wind up with the senate we have today. were initial interest in bringing my opinions on board and you'll find that i'm less likely to be supportive and i will express my views. >> watch tonight at eight eastern on c-span2. >> syrian refugees now living in the u.s. recently took part in the discussion at georgetown university in washington wednesday are expenses on syria and the si