October 20, 2020
By Jonathan Butcher

State university officials in New York have sown the seeds of negligence and are now reaping the whirlwind.

Last November, State University of New York-Binghamton (SUNY-Binghamton) leaders failed on two occasions to stop disruptive, even violent behavior that interfered with expressive activity on campus. After months of inaction from school officials, Young America’s Foundation (YAF) filed a lawsuit against SUNY-Binghamton last July. YAF spokesman Spencer Brown said, “SUNY-Binghamton has a legal obligation to protect and defend the God-given and constitutionally protected rights of its students.”

Now, the U.S. Department of Education has also opened an investigation. In a notice sent to the university on September 15, federal officials said “there seems to be evidence suggesting Binghamton selectively applies its stated policies and procedures to discriminate against students based on the content of their speech.” This notice is a sign of increasing Education Department activity after President Donald Trump’s Executive Order on campus speech from March 2019.

The agency also sent a letter to Princeton on Sept. 16 responding to university president Christopher L. Eisgruber’s statement that “racist assumptions…remain embedded in structures of the University itself,” a violation of federal law (this blog has more on the activity at Princeton from earlier this year). The Chronicle of Higher Education reports federal education officials also recently sent letters to two other universities regarding First Amendment issues.

The Executive Order from last year appropriately elevated the issue of free speech on campus, but such orders can expand the reach of federal officials as agencies determine how to enforce the directives. These Education Department investigations are the first examples of such new federal activity, and how far the agency goes with these investigations remains to be seen.

Meanwhile state policymakers in Alabama, Arizona, Georgia, North Carolina, and Wisconsin have followed the Goldwater Institute’s design for protecting expressive activity, allowing students to protest or demonstrate while also protecting invited lecturers. These proposals are an effective remedy for the unconstitutional speech codes that limit campus speech.

State officials concerned about federal overreach should turn to this proposal because Washington is not waiting any longer for schools where expressive rights have been threatened to decide on their next steps. The SUNY-Binghamton episode began November 14, 2019, when students attacked College Republicans and other students representing Turning Point USA, flipping over tables and knocking hats off members of the assembled groups. John Restuccia, then-president of the College Republicans, said in an interview that security had to escort him and his peers to safety.

Yet school leaders did not take disciplinary action against the violent students. The following Monday, the emboldened “activists” shouted down an event hosted by YAF featuring Arthur Laffer, an economist who has advised state and federal policymakers on both sides of the isle, from former California Gov. Jerry Brown to President Ronald Reagan.

Restuccia said that when the protests started at the YAF event, security made no attempt to remove disruptive students. Instead, “They asked the speaker to leave.”

After the shout-down, State Sen. Fred Akshar (R-52nd) criticized the school administrators’ ineffectual response and canceled his planned appearance at SUNY Binghamton. State Assemblyman Douglas Smith (R-5th) also condemned SUNY-Binghamton’s response, saying:

[If] the university fails to identify and take proper disciplinary action against these students, who had a temper tantrum and physically shut down their peers’ ability to peacefully exercise their First Amendment Rights, they will be condoning violence against their own students.

Remarkably, university leaders announced on August 26, 2020, that the school will form a “Campus Citizen Review Board” to review university police activities but made no mention of the shout down last year. The press release was selective, citing the incidents involving George Floyd and Breonna Taylor as the inspiration for the board, incidents that, while tragic, occurred nowhere near the Binghamton campus.

If SUNY-Binghamton leaders feel the federal activity is too aggressive, they have no one to blame but themselves. State lawmakers and public university officials have state- and university-based models from Arizona, Wisconsin, and the other states listed above to follow that can protect First Amendment rights on campus. SUNY-Binghamton leaders should have demonstrated they were serious about the issue before the arrival of a lawsuit and federal investigation.

Jonathan Butcher is a Senior Fellow at the Goldwater Institute.

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