UC Berkeley Campus Free Speech Settlement is a Win for Students

by Jonathan Butcher
December 4, 2018

Berkeley may be where the campus free speech movement was born, but school officials’ agreement this week to change school speech codes is more a sign of the times—albeit an important one.

The Young America’s Foundation and the University of California, Berkeley College Republicans settled a case yesterday against UC Berkeley over the school’s speech codes. YAF and the student group sued the school over its rules for hosting events and the University’s “High Profile Speaker Policy.”

In the settlement, the school agreed to pay YAF $70,000, revise its “High Profile” rules, and change policies involving security fees for campus events. YAF reports that the agreement should have the result that “protestors will no longer be able to shut down conservative expression.”

Earlier this year, the UC Berkeley College Republicans External Vice President Bradley Devlin told me, “Without that legal accountability, nothing is going to change. That’s why we entered this lawsuit in the first place. It’s for student organizations, regardless if they are liberal or conservative.”

He added, “It’s our responsibility to expose people to new ideas and strengthen our own ideas. If we didn’t do it, the University wouldn’t do so.”

The settlement adds to a growing list of legislative and policy activity in favor of free expression over the past two years. In 2016, Arizona lawmakers abolished free-speech zones on public college campuses, and policymakers took additional steps to protect free speech in 2018. Lawmakers enacted a proposal that includes the potential for sanctions on students that disrupt events or forcibly shout down guest speakers (otherwise known as the “Heckler’s Veto”).

North Carolina and Georgia lawmakers passed similar policies for public universities, and the Wisconsin Board of Regents has also adopted many of these ideas, inspired by the Goldwater Institute’s campus free speech model legislation. Lawmakers in Texas, California, Illinois, Michigan, and Minnesota, to name a few, have considered campus free speech proposals in just the last two years.

Meanwhile, the U.S. Department of Justice put schools on notice. In January, the Department filed a statement of interest in the UC Berkeley case in favor of YAF and the student group, saying, “This Department of Justice will not stand by idly while public universities violate students’ constitutional rights.”

The Department also filed a statement of interest concerning Speech First’s lawsuit against the University of Michigan and the school’s “Bias Response Team,” saying the school’s policy “chills protected speech.”

In February, Inside Higher Ed announced “the death of college free-speech zones,” saying “lawmakers are generally quick to banish them from campuses” and “they hold up poorly to court challenges.” I wrote in Newsweek that changes such as abolishing free speech zones

are already protecting free expression. Last October, protesters at the University of Wisconsin-Madison marched outside a building where an invited lecturer (TownHall.com editor Katie Pavlich) was speaking.

Reports of the protest said the students did not disrupt the event or try to shout down the speaker because of the new Wisconsin university policy that includes discipline for such actions.

UC Berkeley’s statement on the settlement says the result of the case “does not require the University to concede that any of the plaintiffs’ claims of previous viewpoint discrimination,” but the school then lists five items in its event policy that officials agreed to change. The university will now also post more information about security fees for campus events, though officials say “work on such a schedule was already in process” and “the campus has long been planning to make a number of changes to the Major Event Policy this fall.”

Whether the lawsuit prompted school officials to speed up deliberations or fully rescind policies that former Attorney General Jeff Sessions said are easy to turn into a “Heckler’s Veto,” the University paid YAF’s attorneys’ fees and changed its policies. Hard to say YAF and the Berkeley College Republicans can’t claim victory. And when college administrators agree to changes in order to protect students’ rights on campus, it’s a win for students, too.

Jonathan Butcher is a Senior Fellow at the Goldwater Institute.