Hundreds of university general counsel are apparently doing little to ensure that their schools are not unconstitutionally violating the free speech rights of students and faculty.

That's according to a speech by U.S. Deputy Associate Attorney General Jesse Panuccio at the 2019 Harvard Alumni Symposium over the weekend. He specifically cited Clemson University, the University of California at Berkeley, the University of Michigan and others as among 418 schools with troublesome free speech policies. Not everyone agrees with Panuccio.

Jesse Panuccio, Principal Deputy Associate Attorney General of the United States. (Photo: Courtesy Photo)

“There is a free speech crisis on the American college campus,” Panuccio said. “Nearly every month, we hear of new examples.

He cited a 2019 survey by the Foundation for Individual Rights in Education found that 133 institutions either have policies that “clearly and substantially restrict freedom of speech,” or they bar public access to their speech-related policies. Another 285 schools “maintain policies that could be interpreted to suppress protected speech,” the survey said.

He cited several schools in his speech as examples of what's wrong with academic freedom at universities today. The first school mentioned was Clemson University, a public school in South Carolina.

“Clemson's student code of conduct makes it a violation to engage in any verbal act which creates an offensive educational, work or living environment,” Panuccio said. “The code of conduct provides no definition of 'offensive,' leaving students to guess at what will be deemed offensive or favorable, grating or good.”

Clemson has reportedly stated that it applies the code in a manner consistent with the law and the First Amendment. But Panuccio said, “The after-the-fact, subjective judgment—the chilling effect of an ill-defined speech code—is the very problem.”

Clemson general counsel Chip Hood was out of the office and did not immediately return messages seeking comment.

Panuccio said the Justice Department had filed a statement of interest in a lawsuit challenging the UC Berkeley for its “high-profile speaker policy.” He said the policy “gave university administrators discretion to impose severe restrictions on the time and place of speeches based on administrators' subjective determinations” about the speaker.

UC Berkeley chief campus counsel David Robinson referred questions to Dan Mogulos, assistant vice chancellor in the communications and public affairs department. Mogulos called Panuccio's statement “patently false.”

He said a “federal court found our event policy specifically prohibits that type of discretion and is completely constitutional.” In fact, he said, the policy prevents the administration from doing anything based on a speaker's viewpoints or perspectives.

“Anyone who claims that UC Berkeley has done anything discriminatory is simply not aware of the facts,” Mogulos said. He said the school settled the case by agreeing to some “non-substantive changes” in its policy, but the high-profile speaker issue was not part of the settlement because it was not true.

Panuccio said the Justice Department has filed statements of interest in five lawsuits “that seek to vindicate students' free expression and free association rights.” Besides UC Berkeley, the others were Los Angeles Pierce College; Georgia Gwinnett College; the University of Michigan and the University of Iowa.

At the University of Michigan, general counsel Timothy Lynch forwarded questions to Rick Fitzgerald, the assistant vice president for communications, who called the alleged violations of free speech rights “categorically not true.”

Fitzgerald said, “Free speech is alive and well on our campus every day or the week. We have hosted any number of controversial speakers without incident.”

He said the lawsuit that Panuccio referenced “raised concerns with an effort on our campus called the bias response team. They likened the team to “speech police.'” He said the team is simply an educational and resource support group for students and it has no sanctioning authority.

At the University of Iowa, general counsel Carroll Reasoner forwarded questions to Jeneane Beck, assistant vice president for external relations, who said, “The University of Iowa is strongly committed to freedom of expression and the first amendment. Free expression, academic freedom, and diversity of perspectives are all crucial to the fulfillment of the UI's core mission—and the robust exchange of diverse ideas is the essence of a public research university.”

General counsel at other schools mentioned by Panuccio did not immediately respond to messages seeking comment.

Panuccio also criticized schools that allowed hecklers to shut down or shout down event speeches. He said that “mob rule” has broken out at Berkeley, The Evergreen State College in Olympia, Washington; Middlebury College in Vermont, the College of William & Mary in Virginia, and City University of New York.

“The William & Mary and CUNY shutdowns were particularly telling,” Panuccio said, “because the speeches that the mobs shut down were about … free speech on campus.”

He ended his talk with a philosophical discussion on the purpose of a university—which he said should be free inquiry—and on the proper place of students in the university. Panuccio said, “It seems that the student is no longer universally seen as the protégé in the campus environment, but as a consumer to be satisfied.”

He concluded the silencing of opposing viewpoints on campus “threatens to deprive American society of a new generation of citizens who, like their forbearers, share a deep and abiding commitment to free speech and the liberty it guarantees. What's happening on campuses today is simply toxic for our nation's future.”