Speaking only for myself as a trustee at the Lone Star College System, it’s not too early to predict some changes, to wit:
One, there has already been much discussion in Washington, D. C. that the Title IX sexual assault policy should be revised, adding constitutional due process to sexual assault adjudication. The words “due process” are not mentioned in Title IX, but with a possible charge of rape, it would be egregiously remiss not to have such a crime subject to due process.
Lone Star College is way ahead of the curve on codifying a major component of due process. In cases at the college, the accuser submits a statement, the accused, a statement, and Student Services, a statement. The case is finally turned over to an outside retired judge for adjudication.
Two, it’s unclear how the Trump administration will respond to the transgender bathroom directive from the Obama administration’s Departments of Education and Justice. President-Elect Trump has been sympathetic to LGBT matters.
But do not oversimplify the constitutional issues in this transgender case, now before the Supreme Court. At least six constitutional issues are involved:
1. The 14th Amendment’s prohibition of discrimination.
2. The 1st Amendment right of people “peaceably to assemble” and to associate—in bathrooms and locker rooms.
3. The 4th Amendment right to privacy in bathrooms and locker rooms.
4. The 1st Amendment right to religious liberty.
5. The 10th Amendment right for states, not the federal government, to determine local laws.
6. The “Necessary and Proper” constitutional clause, which states that Congress will make “all laws,” not the Departments of Education and Justice.
Three, of late, free speech on many college campuses has been driven by restrictive speech codes, demands for “safe spaces,” prohibition of ‘’micro-aggressions,” mandated “trigger warnings,” and refusals to let certain speakers speak on campus. It is the modern version of Fahrenheit 451.
The Lone Star College Board of Trustees approved on December 1, 2016, a new campus-speech policy. My guess is that you will not find this policy codified on many college campuses in the entire country. The policy reads in part: Speakers may not be disruptive, but “disruptive . . . does not include action that merely presents the possibility of discomfort or unpleasantness that often accompanies unpopular viewpoints.” Furthermore, the college will “not . . . infringe on any right of free speech or expression guaranteed by the Constitution of the United States.”
Our policy echoes the observation of the late Justice Antonin Scalia, who said, “If we stop speech that hurts peoples’ feelings, the First Amendment will be a dead letter.” Fight bad speech with good speech. I think it safe to say that speech is less free on college campuses than it has ever been. Too many college administrators have been weaklings on this matter, and we recall C. S. Lewis, who observed, “Courage is the most difficult virtue because it is all virtues at the testing point.”
On January 10, at the request of a federal judge on the 5th Circuit Court of Appeals, I will be speaking at the Inns of Court before federal, state, and local judges and attorneys on the topic, “Free Speech on Campus.” The constitutional denial of free speech on many college campuses is severe enough to call for such a judicial colloquium.
It’s unclear how President-Elect Trump will respond to the issue of free speech, but he will appoint the ninth Justice to the Supreme Court, likely from a list of some 20 mentioned candidates, virtually all of whom are conservatives. The Court will then consist of four liberals, four conservatives, and Justice Anthony Kennedy, often conservative, but at times a swing vote.