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Commentary

Supremely Naive: The Impact of Board of Regents v. Southworth on the “Marketplace of Ideas”



In 2000, the Supreme Court ruled in Board of Regents v. Southworth that using mandatory student fees to fund student organizations and speakers does not violate the First Amendment rights of those who disagree with the content.

Employing the “marketplace of ideas” metaphor, the Court concluded that more speech, funded by student fees, was important to the educational mission of a university because it stimulated “debate on diverse points of view.” The Court’s decision, however, was premised on the idea that university officials would be “viewpoint neutral” in allocating funds—that they would not let the process be used to promote or silence any political perspectives.

The Court was dreadfully naïve about the state of affairs on campus. Its deferential attitude toward universities and the assumption of good faith speaks to a generation gap between what the justices experienced as students and what today’s students encounter.

Fifteen years later, we see the result of that naïveté: some views are routinely favored while others are squelched.

I teach at Southern Illinois University Carbondale (SIUC), where the viewpoint-neutral criteria are as follows for the graduate student funding board:

In order to qualify, the event must meet the following minimum criteria:

  • Be something of interest to the general graduate and professional student community
  • Be held on the SIUC campus or in the nearby community
  • Be well advertised across campus.

As faculty adviser to a student group, we ran repeatedly into funding denials based on the notion that a speaker we wanted wasn’t “someone of interest.” For example, we were initially told that Ward Connerly (former head of the University of California Board of Regents) wasn’t “someone of interest” despite the facts that he had convinced the University of California system to abandon racial preferences in admissions and led a successful movement to amend the state constitution!

Was Connerly truly not “someone of interest,” or not someone the school administrators wanted students to hear?

One of the neutral criteria used at SIUC was to favor groups that raise most of the funding for an event on their own. After raising thousands of dollars from private donations, we requested $1,500 to cover the remaining expenses for Connerly’s talk. The undergraduate student funding board rejected our request based on the spurious rebuttal “we prefer private funding to be done on campus by students.”

When asked what that meant, I was told “something like a bake sale” (presumably not an “affirmative action bake sale”!). Meanwhile, another group raised no money before their event but scored over $20,000 in funding to bring Clinton adviser James Carville to campus.

In the end, Connerly did come to Southern Illinois University, the law school auditorium was packed to overflowing, and the dialogue between the speaker and the audience was one of the most constructive exchanges I’ve ever witnessed. Students who were antagonistic came away, if not convinced of Connerly’s viewpoint, at least open to ideas they had never encountered before.

The lesson: don’t take “no” for an answer, appeal, cite the law and put the university on notice that you know your rights. This is a place where an aggressive faculty adviser is crucial to ensure continuous monitoring of funding requests over the years.

In recent years, Southern Illinois University has funded five-figure speakers, including David Axelrod (former adviser to President Obama), socialist academic-activist Cornel West, and Wendy Davis, best known for her pro-choice filibuster in the Texas state senate and her failed gubernatorial campaign.

But when we tried to bring to campus such notables as William F. Buckley, Jr., Representative Ron Paul, and Supreme Court justice Clarence Thomas, the administration inflicted death by delay. We were repeatedly blocked with demands for more information, estimates for extra security costs, and other requirements. After such delays, the window for the getting the speaker sometimes closed. Or the administration could say, “Sorry, but we have already given out all the money.”

The situation at my university is not unusual: “viewpoint discrimination” occurs across the nation.

College Republicans at the University of California Santa Barbara (UCSB) were denied funding to bring David Horowitz to speak about the dangers of militant Islam. They appealed the denial to a higher student body, which provided funding only when civil libertarian lawyers intervened. Even then, the minutes of the student body meetings were rife with unconstitutional reasons to deny someone with Horowitz’s viewpoint on campus: his views offended some angry students, made them feel unsafe and uncomfortable with his “hate speech.”

Nor is the viewpoint discrimination limited to speaker invitations: Citing Southworth, a federal judge ordered a community college to stop restricting a campus group, “Heterosexuals Organized for a Moral Environment,” from distributing flyers on campus. A group of female conservatives at the University of Colorado (Boulder) complained that their travel funding to attend a conference was overturned for ideological reasons when funds were made available to liberal students to travel to their events.

Pro-life demonstrations on campus are also a sore spot. The struggle for space on campus to voice pro-life views is a daunting one, as student groups found out at Eastern Michigan University, Oklahoma State, and University of South Alabama. Speech codes have been used to deny recognition to pro-life (and other unpopular) groups. Such was the case at Johns Hopkins University.

Given the Supreme Court’s lack of interest in exploring what really goes on at college campuses, the only remedy is constant vigilance. Hostility toward conservative and libertarian speakers is widespread, but at least Southworth’s ban on viewpoint discrimination provides ammunition to student groups who want to appeal a funding denial. Campus groups denied funding need to appeal as often as possible and document repeated funding denials. Do that and the college or university’s general counsel is apt to sense legal trouble and warn the administration that it should become more neutral.

What else might be done?

A real effort must be made by notable persons on the left and right to encourage debates on campus. Debates were once part of the college experience of being exposed to differing viewpoints. Indeed, one of the most rewarding events I ever helped organize was a retrospective debate on the Equal Rights Amendment held during Women’s History Month, between ERA opponent Phyllis Schlafly and former National Organization of Women president Karen DeCrow.

The event brought together strange bedfellows: women’s groups, the University Foundation, Women’s Studies, College Republicans and Democrats. DeCrow told me that she relished these debates with Phyllis Schlafly in the 1970s and 1980s; while DeCrow is often invited to college campuses to speak, she wished that students could be more exposed to a clash of ideas.

Debates checkmate the pro-leftist orientation of most campus decision-makers. There won’t be an event unless the Right gets an equal hearing.

Such debates could be distributed as a video series for use in classrooms (where some debate still occurs). Tying them to the usual designated months (Black History, Women’s History) is a natural tie-in to existing sources of funding. Many students, I am convinced, will respond favorably to debates.

A major push by a nonpartisan foundation concerned with education could be what is needed before the memories of free and open debate die with the last generation of college graduates who recall how thought-provoking college could be.


Jonathan Bean is a Research Fellow at the Independent Institute, Professor of History at Southern Illinois University, and editor of the Independent book, Race and Liberty in America: The Essential Reader.


From Jonathan J. Bean
RACE & LIBERTY IN AMERICA: The Essential Reader
Race and Liberty in America explains the major themes of the anti-racist, classical liberal tradition of individual liberty and equality, demonstrating how it has inspired individuals to improve race relations in the United States. Rooted in the Judeo-Christian natural-law tradition, classical liberals have advocated freedom from governmental interference, abolition of prejudicial law, equality under a uniform rule of law guaranteed by the Constitution, and market-based entrepreneurial opportunity.







  • MyGovCost.org
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