Sharing Is Caring? Tracking State Adoption of ALEC’s Campus Free Speech Legislation

By Gustav Honl-Stuenkel

The coronavirus crisis has highlighted a perennial tension in the U.S. political system between the state and federal governments. Debates over Free Speech also reflect this rift, especially when centered on college campuses. Despite the national importance of Free Speech in these times, the federal government actually wields little influence over the policies pursued even by public colleges and universities, which are subject first and foremost to state regulation. 

But this reality has not stopped national political organizations from attempting to bridge the gap between the national preoccupation with Free Speech and disparate state policies on the issue.

A bill spearheaded by the American Legislative Exchange Council (ALEC), making the rounds of state legislatures, illuminates the drama.

In May 2017, ALEC unveiled the Forming Open and Robust University Minds Act, or FORUM Act. According to Scott Kaufman, director of the Education and Workforce Development Task Force at ALEC, the FORUM Act is “a set of best practices” that may not be practical or necessary in every state. “Ultimately,” he says, “it is up to state legislatures to decide if a model policy is right for them.” 

Thirteen states, as of May 2020, have advanced the bill in some form.

Five aspects of the legislation address different elements of the Free Speech debate. The model bill eliminates “free speech zones” — public areas set aside for political protest — on college campuses and designates all outdoor space as a public forum; it insists that all student groups, including religious, ideological, and political organizations, receive the full benefits offered by a university, even if those groups require their members to follow certain beliefs and standards; it requires public colleges and universities to file an annual report on Free Speech and expression on their campuses; it guarantees individuals the right to sue a public institution if its alleged violation of the FORUM Act harms them; and it redefines what forms of conduct and speech constitute “harassment” and, thus, what speech can be punished by universities. 

These components provide a framework from which state legislators can modify the FORUM Act as they choose. Some of these provisions bear further explanation, however. 

Free Speech zones are public areas set aside for political protest on college campuses and have been the subject of numerous lawsuits in recent years. In an interview with the Free Speech Project, Diana Ali, associate director of research and advocacy for the National Association of Student Personnel Administrators (NASPA), said: “Free Speech zones are sometimes used … to limit the campus presence of those unaffiliated with the institution [in] order to uphold the educational purpose of the campus community.” While NASPA has not released an opinion on the litigation around Free Speech zones, Ali acknowledged their usefulness in this respect. 

According to Kaufman, however, this protection of voices, even from outside the campus, is precisely the point: “Public universities are government institutions,” he explained, so the legislation aims to balance “the rights of an individual or group to express a viewpoint and another individual or group to express a counter-viewpoint” in that public space, regardless of whether they are members of that campus community. 

The FORUM Act also ensures that universities cannot deny benefits to any student organization based on the group’s speech or whether it requires its members and leaders to “affirm and adhere with the organization’s sincerely held beliefs” or “comply with the organization’s standards of conduct.” This provision appears to anticipate lawsuits like the one taken against the University of Iowa, which allegedly violated a Christian student group’s Free Speech rights by de-registering it because its statement of faith excludes LGBTQ students, according to Inside Higher Ed

That provision has drawn sharp criticism. In January 2018, for example, the American Civil Liberties Union (ACLU) of West Virginia came out against the FORUM Act when the state legislature took it up. “The bill is largely a campus free speech bill that … ACLU-WV would probably support” under ordinary circumstances, its press release says. But it goes on to complain that the legislation “would essentially wipe out school non-discrimination policies as applied to student clubs.” Public universities accept both taxpayer money and funds paid directly by their students. Because of this, ALCU-WV maintains, they should not be forced to fund all clubs: “a Jewish student at [West Virginia University] could be forced to pay a student activity fee that funds a club that prohibits Jews from membership. It would be outrageous.”

The FORUM Act’s definition of harassment, which is included in new U.S. Department of Education Title IX regulations set to take effect on Aug. 14, 2020, has attracted similar criticism. In 2013, during the Obama administration, the Department of Education told the University of Montana to adopt a definition that was entirely subjective, one with which most universities have since aligned. The FORUM Act’s definition asserts that expression must be “subjectively and objectively offensive” to be considered harassment. Changing the standard for what is considered harassment reduces the range of actions and speech for which universities can punish their students, protecting their Free Speech rights but also, opponents argue, protecting what some would consider harassment.

Free Speech debates are notorious for defying typical partisan divisions. As can be seen with the elimination of Free Speech zones, protections for student organizations, and even the simple definition of a term, all sides can justify their stance legally and rationally. In this way, conservative and progressive organizations alike have taken steps to defend the First Amendment, and universities have long served as flashpoints for these debates. Legislation like the FORUM Act will undoubtedly set the terms of debate and determine the status quo in state legislatures around the issue for years to come.  

What states have included in their versions of the FORUM Act: 

StateEliminate Free Speech zonesProtections for student organizationsFree Speech reportsRelief for those affected by violationDefinition of harassment
Georgia xxxx
Ohio xxx
South Carolina xxxx
West Virginiaxxxx