by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The courts have failed. The culture is failing. Unless Congress acts, we may lose not only free speech on college campuses, but free speech in America. In the memorable phrase of my friend, Foundation for Individual Rights in Education president Greg Lukianoff, college students are “unlearning liberty,” carrying the virus of censorship and oppression beyond the university and into the nation.
The courts are failing not because the underlying legal doctrines are flawed but because the remedies for censorship are completely inadequate. As of right now, there is a far greater financial incentive for a university to keep its sidewalks shoveled in the winter than to protect one of our nation’s founding liberties. If a student slips and breaks an arm, they stand to win much larger damages in court than a professor denied a promotion because of his speech or a student group thrown off campus merely because it’s Christian. …
… If we can’t count on courts or colleges to protect free speech, then it’s time for Congress to step up. There’s a remarkably simple solution to the problem of free speech, at least on public university campuses: Adjust the incentives. Make it costlier to censor than to protect the Constitution.
All it would take is a law holding that if a court of final jurisdiction finds that a public university has violated the constitutional rights of a student or faculty member, then the university will pay liquidated damages to the plaintiff in the amount of no less than $5 million. It will also forfeit 25 percent of its federal funding in that current fiscal year. If a university is a repeat offender at any point in the five years following, it will forfeit 100 percent of its federal funding in that fiscal year.