Jon Fansmith: Hello, and welcome to dotEDU, the higher education policy podcast from the American Council on Education. I’m your host, Jon Fansmith, and a little bit later in our podcast we’re going to be joined by Cass Sunstein, who’s the Robert Walmsley University Professor at Harvard, the author of a number of books, including the recently published Campus Free Speech: A Pocket Guide. And unfortunately, I was not able to actually join that conversation, which is particularly unfortunate because he’s one of the few guests we’ve had that my wife actually was very excited about. My wife, not a higher ed person. But the two people who were able to join that conversation and brought it in brilliantly, I might add, are my colleagues Mushtaq Gunja and Sarah Spreitzer.
Sarah Spreitzer: Hey, podcast friends, good to see you guys. I’m kind of excited about being back.
Mushtaq Gunja: Happy fall to both of you. It’s election season. I love election season. Going to be a great year-
Jon Fansmith: I can verify, yeah. Sorry, Mushtaq, I jumped right over you, but I was just going to say I can verify Mushtaq really loves election season. And I learned the other day, Mushtaq, you used to teach a course on presidential elections.
Mushtaq Gunja: I did, yeah. I don’t quite have time to teach it right now; I’m teaching something else, but I make up for the fact that I’m not teaching by spending all my time on 270toWin.com, just playing around with maps.
Sarah Spreitzer: My god.
Mushtaq Gunja: It’s a lot of fun, Sarah.
Jon Fansmith: It is fun.
Sarah Spreitzer: No, no. I kind of ignore it until it happens in November. Every election year, I just feel like I’ll watch the news, watch the debates, but I don’t get that granular.
Mushtaq Gunja: Sarah, speaking of ignoring it until it happens.
Sarah Spreitzer: Yeah, good segue.
Mushtaq Gunja: Seems like we were about to maybe deal with some new and the latest round of shutdown stuff, but it feels like it got averted. Jon, Sarah, what happened there?
Sarah Spreitzer: I was actually surprised they... I think the Senate’s passing the CR tomorrow. I was just on the House side, and I can verify it is very empty, even though there were some people I think doing fly-in days. So there were a lot of visitors; didn’t see a lot of members. Yeah, and they got something through that beats the shutdown deadline by five days, way ahead of schedule. But I haven’t actually read the language. What’s in there, Jon?
Jon Fansmith: Yeah, and there’s not a lot that’s in there for higher ed, and I do think it’s kind of interesting that this was the one thing they had to do. The government ran out or would run out of money on September 30th. So the CR or continuing resolution, which is basically just Congress pushing back to a new deadline, what they agreed to do was to move the deadline back to December 20th, essentially just let themselves have a month or so after the elections to figure out what they want to do.
It’s good news, right? The government doesn’t shut down. The bill itself’s pretty much what they call a clean CR; there’s not a lot of changes in it. They put some extra money in for things like the Secret Service, given some recent lapses in security by the Secret Service; that’s one. A few other things. There’s some money for Veterans Affairs, where there’s a need for more money that they wouldn’t be able to meet if they didn’t provide it. So a few little tweaks, nothing we’re that focused on, though.
Sarah Spreitzer: But this wasn’t the CR that they started the month with. So we’ve been back, everybody’s been back, start of September. Speaker Johnson had a really different vision where he was going to do this CR that was supposed to go until March, which no one seemed to like. And then he was also partnering it with the SAVE Act, which has to do with voting rules, not with forgiveness of student loans. So Mushtaq, I’m sure Mushtaq has thoughts on this too. What happened? Why didn’t that CR go forward?
Mushtaq Gunja: I wish I had thoughts on this, but to be honest, I find all of it sort of strange. I mean, I don’t understand taking this thing to December. I’m sure there’s some grand political strategy, but a lame-duck Congress having to deal with all of this? And I know that we’ve predicted shutdowns in the past and have been wrong, but really feels to me like we’re going to shut down over Christmas because I don’t know why the old Congress is going to want to tie the hands of the new Congress.
And I think this Republican slim majority, I’m not sure they want to fund... I don’t know. I don’t think I understand what the grander strategy is here. Feels like we could have, as you said, Sarah, just kick this thing to March and then maybe allow a new Congress and new president deal with this. But maybe if you’re not really interested in having the government function, then this is a nice way to put a wrench in the spokes or something. I don’t know. Jon, what do you think?
Jon Fansmith: Well, it’s interesting. One of the things, Democrats actually pushed very hard for the shorter continuing resolution in part because when you push out funding levels for additional years, what you’re doing is flat funding. You’re not increasing funding. You go into March, you’re halfway into the fiscal year and you’re flat funding. So the opportunity to have increases where you think they’re needed or where you would like to put the money, the further out you do it, you’re tying your hands on that, and that’s actually why conservatives in the House wanted that late March deadline-
Mushtaq Gunja: Oh, that’s interesting.
Jon Fansmith: is the part of it that restricts funding. The big thing here is, I love that you were questioning this from a viewpoint of, what’s the rational approach and what is the underlying thought process? A lot of this is, let’s punt and see what happens in the elections. It’s pretty normal for Congress actually to push into December. They try to use a late December deadline as an incentive to get compromise because members want to go home for the holidays. So there’s just sort of a basic, let’s do it late December, and the sooner we can wrap it up, the sooner you can leave Congress and go home.
But this year, huge election year, tight margins in both chambers, very close elections in both chambers, certainly in the presidency, very close election. There’s a little bit of, if we move it to December, we’ll know what the dynamics are. If Republicans win the House and the Senate and the presidency coming out of November, they will have a very different outlook on what kind of deal they think they can strike by delaying versus what they might want to do in a lame-duck. Same thing with Democrats, if they’re looking at holding a majority, their power to force a deal, it could increase, but right now they control the administration and the Senate, it gives them a lot of leverage.
It just, you don’t know. And in terms of tying the hands of future Congresses, that never seems to be a big concern of other Congresses. They’re perfectly happy to put it forward.
It’s really a lot about protecting the administration. Democrats will want to take a funding fight off the table for the start of a Democratic administration. Republicans will want to do the same. They don’t want to have a Trump presidency that starts with having a fight with Congress right out of the gate to keep the government open and operating. It’s just a mess.
The other thing that’s frankly a big possible mess here is that on January 1st, the debt ceiling lapses. There’s a provision that essentially keeps the federal government funding its debt through January 1st. It’ll probably go past that. The Treasury always uses so-called extraordinary measures to keep paying our debts past the point when the debt ceiling lapses. But that’s another big fight that moving a CR to the end of December, you can say, well, maybe it gives a little bit of an impetus for dealing with two problems at the same time and clearing the decks for an incoming administration to at least try to focus for a little while on their priorities, get their people in place, do some other things before you force a conflict on some big, big issues.
Sarah Spreitzer: Obviously, I think the members, all they’re thinking about is the election because they left town early, right? I mean, they weren’t supposed to be out until the end of this week, and they’re out and not really looking back. And it does seem kind of weird because we’re at the end of the Biden administration and we would usually talk about, what has the administration accomplished? But I think all of those conversations are being framed around the election.
And so for instance, we just had this, they’re still trying to kind of wrap up FAFSA, looking forward to next year because obviously we will still have the Biden administration, but there was just this GAO report that came out at FAFSA. And I know that they had a hearing in the House on this, that again, being kind of framed for political things and everything kind of falling under that umbrella. But I didn’t get a chance to watch the hearing. Did you watch that?
Mushtaq Gunja: Jon, you did, right? At least part?
Jon Fansmith: Yeah, I’ve watched parts of it, as some of you. As we record this, it is Wednesday, the 25th. And ACE’s board was actually in town, so I know a lot of us had responsibilities around that, so I wasn’t able to watch the hearing like I normally would, but-
Sarah Spreitzer: It’s called multi-tasking, Jon, multi-tasking.
Jon Fansmith: Some of us are better at it than others, Sarah. That’s why I love working with you.
But it was kind of an interesting thing. The GAO report, I think there was a lot of expectation that the GAO report was going to be this bombshell that was going to blow open the disaster that was last year’s implementation of the new FAFSA. And I don’t want to downplay the findings, but the report itself was a lot of things that have already been publicly covered in the press, that were widely known here in Washington, and the hearing, I think reflected that. Democrats and Republicans both essentially said, “Department has to do better. We’re heading into another cycle where there’s already concerns emerging. There’s going to be a higher level of scrutiny.” This wasn’t partisan in any way, and in many ways what the report did was just reinforce what people have understood.
There were some things that came out in the report that some people I’m sure were aware of, certainly financial aid people, but that were new to me. Like students who were born in the year 2000 for a couple months were not able to complete the form, just because of their birth year. So weird little things like that. A lot of attention to how bad the contractors that were doing customer service calls into the department were. Really low rates of answered calls, really low rates of returned calls, misinformation sometimes when people were being connected, lack of support for languages other than English and Spanish.
A lot of things that people knew about and experienced, and seeing it all cataloged and detailed in one place was pretty damning, but it wasn’t really this level of, here’s who needs to be fired, here’s where the blame lies. It was really, which I think is a pretty accurate reflection of what happened. Lots and lots of breakdowns in lots and lots of different areas, which all contributed to a big systemic collapse, in terms of what happened.
So pretty good roadmap of what not to do going forward. And certainly the department seems to have a different plan and putting time and attention to other things, being a lot more cautious and a lot more transparent about what they’re going to do. Certainly not what we would see in the ideal, December 1st instead of October 1st this year for the full form rollout, according to their current plan. Not ideal, but, again, they’re taking it slowly; they’re trying to avoid a repeat of the series of escalating mistakes they had last time. So anyway, hearing was interesting, report was interesting, but not really a whole lot new or shocking that came out of it.
Mushtaq Gunja: I was struck by a couple things. First, I’m always blown away by the fact that there are students whose birthdays start with 00, which just makes me feel old.
Jon Fansmith: All of us. All of us, Mushtaq.
Mushtaq Gunja: The other thing I was struck by was, I sort of agree that there was less new in this report than I thought. I think the reporting has actually over the last six, nine months has been pretty good, and we knew what a lot of the failures were. I mean, firsthand, we were getting so many of the reports from financial aid administrators and students on some of the problems in this, that’s right.
But on a looking forward basis, I felt like there was a little bit less in the prescriptive set of worries that I thought might be identified. I don’t know if this is me being too optimistic, but I am feeling cautiously optimistic that this next round of financial aid is going to work better. I know that they’re delaying, as you said, the full form rollout until December, but hopefully we will be able to catch some of these problems on the front end this time. Maybe it’s the silver lining in all this is that when everything goes wrong all at once, at least you know what, hopefully, most of the problems are. And I’m optimistic for a good year ahead.
Jon Fansmith: We’re going to wrap up this section so we can get to our break and especially get back to our guest, Cass Sunstein, right after the break in a really, I think, illuminating conversation with Mushtaq and Sarah.
Mushtaq Gunja: And we are back, and we are joined by a very special guest, Professor Cass Sunstein, prolific author, esteemed constitutional scholar. Professor Sunstein teaches now at Harvard Law School, teaching classes in constitutional law and administrative law. You might know him from his time in the Obama administration as administrator of OIRA from 2009 to 2012. You might know him from one of his, goodness, 30 books, including the bestseller Nudge. I read the final edition of Nudge—I think it’s called Nudge: The Final Edition—this past summer. And Professor Sunstein has a new book out entitled Campus Free Speech: A Pocket Guide. It’s definitely an amazingly important read for this day and age. And Professor Sunstein, we’re so happy to have you on the podcast.
Cass Sunstein: It’s a thrill to be here. Thanks for having me.
Mushtaq Gunja: So Professor Sunstein, I read Democracy and the Problem of Free Speech, which I think you published like 30 years ago, probably 20 years ago. Why this book? Why an update on those themes? Why now? How did you think about writing this book?
Cass Sunstein: So the protests of the spring made me think it would be good to get clarity on free speech principles and what’s happening on campus. So I started to write notes to myself on my computer, just like a document, and there were scenarios that I devised based on reality or versions of reality involving student protests or faculty behavior, and I started to assemble lists of how to handle them. It was very inductive, not top-down, bottom-up.
And after a while I had a lot of pages of lists, and it occurred to me that the abstractions about, free speech is super important on the one hand, or on the other hand that the educational mission justifies restrictions on speech that wouldn’t be justified elsewhere. These are things said by reasonable and good people that are in conflict, and it’s hard to come to terms with the abstractions without having real scenarios that would tell us how reliable the abstractions are and which one comes into play. And after a while, the sheer volume of words on my little document, it occurred to me that there’s maybe a little book here. And a publisher, Harvard Press, took pity on me and said, “Okay, publish this. We’ll publish it.”
Mushtaq Gunja: Professor Sunstein, how did you think about your audience here? So you were writing notes, presumably to yourself or maybe to organize your thoughts. How do you turn that into a book and who were you writing it for?
Cass Sunstein: Basically, this is unusual, I think. I was writing really to get clarity and not for an audience. I was writing for, I wouldn’t say for myself, I was writing for clarity. Suppose there’s a goddess called Clarity, I was writing for her. And then as the stuff started becoming a text, I was thinking really anyone interested in how to handle a free speech problem, this would be my audience. And of course, college administrators were the most natural because they’re on the front lines. But I have a 12-year-old daughter, and I had breakfast with her this morning, and the book’s kind of written for her also.
Mushtaq Gunja: As I read it, I sort of felt like it was a little bit of an ode to the First Amendment, in a book that, as you say, is accessible to many; I love the look through real-world scenarios. But it also struck me that it’s not obvious that we should be applying First Amendment principles on our college campuses. So why? Why should we be thinking about the First Amendment as a framework for tackling these issues?
Cass Sunstein: Okay, you’re completely right, everything you said, so I thank you for that. And the question’s the right one. So you mentioned a book I did on democracy and the problem of free speech. I’ve done some writing, as law professors do, on issues where there’s a view that the writer thinks is worthy and not what everyone thinks, and you try to press a line that you think is true, and may be an improvement on the status quo. This is not that kind of book.
So this is not pressing a line that I think is an improvement on where free speech law is. It’s kind of the book of a plumber or a throat and nose doctor who’s saying there’s something that needs to be fixed, and here’s what you do. And what I’m doing is really reading off the First Amendment, rather than saying the First Amendment should be reoriented.
You say it’s an ode to the First Amendment also. That turned out to be true. So the First Amendment’s doctrine as it’s developed over time, if I could sing, I’d sing to it. I can’t, so I write to it. And it’s a thing of, I think, surpassing beauty, and the fact that we’ve got it in our country is something to be really grateful for. We’re blessed by it and we can concretize that set of claims if we want, but that’s why it’s a song.
Now, public universities on the question, why should they follow the First Amendment? The answer is, they have to. So if we’re speaking of the University of Massachusetts or the University of Michigan or the University of Mississippi, they are technically bound by the First Amendment; they have to follow it. If we’re speaking of a private university, you know, Stanford or Oberlin or Sarah Lawrence, they’re not bound by the First Amendment. And so the question is, why should they follow this? Why should... What they think best? And there are two answers. The first is—and they’re complementary; they’re not alternatives.
The first is that if you try to generate a set of free speech standards at Sarah Lawrence or Oberlin from the ground up, you’re a little bit in a position of, let’s say, a first-year medical student trying to figure out how to handle a problem. And it’s going to be really hard and the time spent and the division encountered, et cetera, are not going to be a great thing. It’s going to be chaos and mess. So the first thing is the First Amendment provides a kind of off-the-rack set of principles that can just be applied and kicked in, and they’re going to make a life not completely without difficulty, but they will make life a lot easier, like a ton easier.
The second reason, complementary to the point about making life just manageable, is that the structure of principles and to some extent rules we have from the First Amendment, it’s a really good structure. So for, let’s say, Nevada or Oregon, it’s a good structure. It’s also a good structure for a private university. Now, not perfect. So if you want to say, we’re West Point and we’re not going to be First Amendment fetishists, or say we’re Notre Dame and we have our own mission and so we’re going to make some adjustments. That’s completely reasonable for a military academy or an institution with a religious identity which is playing a role in what it finds tolerable or not. That’s all very discussable.
But for most private universities, that’s not the right path. The right path is to say that Justice Jackson had it right, Robert Jackson, that is, when he said, “Compulsory unification of opinion achieves only the unanimity of the graveyard.” I think that’s the greatest sentence ever written by a Supreme Court Justice. And one thing that universities need not to have is a graveyard, and the thing they need not to have is what in Jackson’s formulation is kind of the same thing, which is compulsory unification of opinion.
Sarah Spreitzer: I have to tell you, Professor Sunstein, I love this. I love that it’s pocket sized. It made me think of college or university administrators carrying it in their back pocket and taking it out to reference it. I also really appreciated your explanation of the difference between how private institutions and public institutions fall under the First Amendment. And at the end of the book, you have five points, a proposed framework for campuses to use. Can you talk through that framework a bit? But also, is there a difference in how public or private institutions might use that?
Cass Sunstein: Yeah, so I did try to distill the book, which is itself short and a distillation of what probably was on my computer somewhere, which is a tome, and trying to distill the distillation into effectively a one-pager.
Okay, so first idea is that if you have diversity of opinion and pluralism and people are feeling threatened by ideas but people are not feeling threatened to express ideas, that is we have safe spaces for ideas but not for feelings, that’s great. That’s what we want. We want diversity and pluralism and we’re fundamentally committed to that.
A second point is if speech is not protected by the First Amendment, it need not be tolerated. So if you have, for example, something that’s causing a clear and present danger of imminent lawless action, or if you have a conspiracy to commit a crime, or if you have plagiarism, or use of AI to plagiarize, these things people don’t have a First Amendment right to. And there are others and they either, depending on what university you are, won’t be tolerated here or need not be tolerated here. I’d like to say won’t be tolerated here, that the things that are inconsistent with the First Amendment, that is to say not protected by it, won’t be tolerated on the university unless there’s some special reason.
The third point is there are a bunch of things that are concrete and not to be tolerated in universities, unless they think there are special circumstances. One is stopping a speaker from speaking. There’s no First Amendment right to shut down a speaker. Another is taking over a building. There’s no First Amendment right to take over a building. Another is trespassing on property which is protected against trespass by the law. And this is just a glimpse into a set of principles which regulates speech either incidentally, they’re not targeting speech, or regulates speech in a way that doesn’t depend on the viewpoint people are expressing or even the content of their communication.
So viewpoint regulation would say, for example, “Speech that’s enthusiastic about Hitler is not permitted here, but speech that’s critical of Hitler is permitted here.” That would be a viewpoint-based restriction. And I’m intentionally choosing a kind of viewpoint-based restriction that would seem most agreeable. It’s kind of the most agreeable choice. I think people don’t like Hitler very much, and that’s a very good thing. Nonetheless, viewpoint-based restrictions are presumptively off limits under free speech law.
Content-neutral restrictions, like you can’t speak loudly in the dormitory or you can’t play Taylor Swift at full volume. Well, that would be content-based. You can’t play any music at full volume between the hours of 1:00 AM and 4:00 AM. That’s going to be okay. So that’s in the category of regulable, so that’s principle of things that are okay to rule off limits consistently with a system of free expression.
And the last point, this is a summary of a summary, but the last point is that there’s some speech that can be restricted because of the educational mission of the university. That’s going to be as narrow a category as possible. I say, some people disagree with this, but let me make a pitch for this view, which I think is where First Amendment law is and where it would go if we saw more tests. If a professor says, “I want to teach in my history class, I’m going to teach Star Wars movies because I really like them, enjoy them.” The university can say, “You’re a history teacher; you’re not teaching cinema. You can’t teach your Star Wars movies.” Or if a student says in class, “I think the presidential election is the most important thing under the sun.” And though it’s a class on let’s say physics, I’m just going to talk about the election. The institution’s entitled to say, “The educational mission requires students and faculty to speak on the issue that the class is about.” And that’s okay.
And there are other things that are more controversial but that come from the basic idea. Let me give the most controversial one I think I have. Suppose a university says, “We’re kind of a left of center faculty, not because we wanted to be but just because that’s how hiring ended up.” And in our, let’s say, we’ll take a law school because this is the area I know best. The law school says, “We’re going to try to hire some conservatives and in constitutional law, we want to hire conservatives. And that’s because we want intellectual diversity for the community, including the students.” That’s okay. I say that’s viewpoint discrimination. Standard viewpoint discrimination is out of bounds, but if a university says we want various points of views to be represented here in our community, that’s okay. Now, we can find cases where it wouldn’t be okay, but I’m trying to describe one where it could be and I think would.
Sarah Spreitzer: Yeah, and you do in the book, you talk a bit about institutions that may take a stance on something, and I was also thinking of faculty members who may take a political stance in the course of teaching, or they may hang up a political sign in their classroom. Where does academic freedom play into, either for an administrator or for a faculty member, when we’re talking about campus free speech?
Cass Sunstein: Okay. So the First Amendment I think is gold and academic freedom is potential, let’s put potentially in bold, fool’s gold. So academic freedom isn’t a thing under our Constitution; the First Amendment is a thing under our Constitution. There are cases that suggest that some ideas about academic freedom fall out of the First Amendment, but the words aren’t in the Constitution. And if there is an academic freedom thing, which I hope there is, it has something to do with free speech and how it gets specified as applied to the university. This is regrettably abstract.
Suppose the university says, “We think climate change is an existential threat, and we’re hopeful that Congress and the nations of the world will combat climate change.” That is probably protected by the First Amendment. Institutions have first amendment rights, following the views of many others, though not all others by any means. I regard that as regrettable, though I share something like that view about climate change personally.
So the idea that institutions are taking stands on issues of the day seems to me not a good idea, that it has costs in excess of benefits. It does regrettable things to the academic community itself. And a principle of principled silence is a really good idea.
I do have an exception to that, which is I think genial to those who share the view I just stated, which is if a university or a set of universities is trying to protect its own institutional interest. That’s okay. So if a university in California is saying there’s a law that’s going in California that’s going to strike at the heart of our institution, that’s okay. Just like a company can say this company is going to hammer small business, and that’s something we object to. But on the issues of the day, broadly speaking, self-silencing seems to be prudent, and there’s some movement in the direction of an announcement, “We’re not going to take a stand on issues of the day.” So that’s the institution.
Now for professors as a first approximation, both students and professors have First Amendment rights. Put academic freedom entirely to one side. If a professor says, “I like one presidential candidate and I’m going to vote for that person,” that’s protected by the First Amendment. There’s nothing regulable about that at a public university, and private universities shouldn’t punish that or have a problem with that. If a professor, let’s say of biology, has a extreme view on some issue, take your pick. Could be race, could be gender, could be foreign affairs. And let’s say it’s a very left-wing view or very right-wing view or indescribably, we don’t know what wing but it’s a wing view, that’s protected by the First Amendment. So public university, let 1,000 flowers bloom. It’s a little bit the opposite of the plea for neutrality from the institution.
Now the hard case would be if a professor says something that’s political in some sense that compromises educational performance. And there we have, we can think of hard questions. Let me give one. If a professor of, let’s say, physics says in class, “I have a really hard time teaching women.” Suppose it’s not sexual harassment; let’s suppose it’s more, I don’t know what the right word, more distant than that. He’s not harassing anybody, but he says, “The reason I have a hard time teaching women is they can’t do the subject. Their brains just don’t work in a way amenable to learning.” A university can say, “You really can’t say that because you can’t your do your job if you say that.” So that’s a pretty straightforward one.
And there are Supreme Court cases involving government employees that go broadly in that direction. Government employees have First Amendment rights for sure, but if employee at the Internal Revenue Service, let’s say a political one, says, “The income tax is a form of theft and there shouldn’t be any,” the treasury secretary should be entitled to say, “Look, you can’t be saying that and do your job. It’s compromising.”
Now, if a professor says something out of class, it’s weaker for the university, but we could imagine a professor saying something about race that would be not a political thing, but let’s say making it so that students of color reasonably believe that that teacher either hates them or thinks because of their skin color they can’t do the work. Now we’re talking about compromising educational performance. And that’s something that professors, you have to be respectful to your students. You have to be hardworking. You have to show up for class. And there are a set of restrictions that are legitimately imposed on professors consistently with the First Amendment. And that includes some restriction on outside of class speech that compromises the ability to do the job.
I want to be very careful with that. If a professor says, “I’m an atheist and I think belief in God is foolish,” or “Catholic, and I think that people who don’t et cetera...” and then it follows something that students who aren’t Catholic are very unhappy to hear. All that’s protected. All that’s protected, but still there is a category.
Mushtaq Gunja: And it feels like all of that, all of these hard cases that you’re referencing, bump up against some potential Title VI protections. So I think our administrators are constantly thinking about the right way to be able to have a safe learning environment for their students. And I can imagine that there are several things that administrators or faculty members could do that might put us in a position where the ways that students experience the campus might be, I don’t even know what the right word is here, but might be, let’s just say affected, I’ll use a neutral word, affected. How do you think administrators should approach that question, keeping First Amendment principles in mind, but also understanding they have some obligations to create a safe learning environment?
Cass Sunstein: That’s also a great question; thank you for that. So following Title VI is mandatory, except if following Title VI offends the First Amendment. So life is kind of simple. If Title VI requires you to do A, B, and C, you’d better do A, B, and C. And if C violates the First Amendment, you better not do it. First Amendment trumps Title VI and would be interpreted, and Title VI as applied could be struck down under the First Amendment or it could be interpreted against what some people would like to do so as to avoid a serious First Amendment problem.
I think as a casual observer of this that there are two Title VIs: there’s technical Title VI and there’s atmospheric Title VI. And technical Title VI has very firm contact. Atmospheric Title VI, not so much. There’s nothing in Title VI that requires a safe learning environment. There is a lot in Title VI that has to do with discrimination.
So take an extreme case where you have pervasive sex discrimination on the part of, let’s say, a department. And let’s suppose the sex discrimination, it might be sexual harassment or not, is a thing. The First Amendment doesn’t protect sex discrimination. So if a faculty member says, “Women aren’t welcome in my class,” or if a faculty member creates a hostile environment for women, that’s forbidden under Title VI and the First Amendment doesn’t stand in the way. The only qualification would be you could imagine a very, very broad understanding of a hostile environment, which would run into a First Amendment problem.
But I would encourage... This is kind of in a way of part of making life lawful and also making life simple, to be very technical about what Title VI requires and permits. And it’s not, some areas of law are a complete mess, Title VI really isn’t. And to get the lawyers in the room and say, “What does Title VI require? That’s what we’re going to do.”
Sarah Spreitzer: Yeah, and I think for the non-lawyers, myself included, I’ll just say, Title VI is the law. That’s a civil rights law that provides freedom against harassment or discrimination based on race, color, national origin, and shared ancestry. And many of the administrators listening to this podcast are going to be familiar with it because we’ve seen a lot more Title VI investigations happening from the US Department of Education over the past nine-month period. And I think it’s something that we’re all becoming very aware of, especially with how you balance, as you were saying, Professor Sunstein, First Amendment rights and your Title VI obligations.
But I guess my question is, two years ago, I don’t know if we would be having this conversation. You started writing this book when things started happening on campus, but we’ve seen a lot happen since the October 7th attacks. We had the December hearings with Harvard President Claudine Gay. We had the Columbia president’s testimony. We had the protests erupt at Columbia following that testimony. Are there things that you think you would change about the book if you were writing it now? Or do you think there are things that we’ve learned over the past nine-month period?
Cass Sunstein: Thank you for that. So thank you first for calling out Title VI and its texts about race, color, and national origin. I extended it to the sex area, just because it’s right, I think, for universities to think of sex discrimination as parallel. Technically, Title VI is focused on those three categories, but for universities to think of them all in this way is a good idea, and sexual harassment is a prohibited thing, even if it’s not covered by Title VI.
This book is really, when they say hot off the presses, it’s hot off the presses. So I finished it, as a first approximation, two days before it was published. It’s not quite right, but I finished it very soon before it was published. So it’s been published, it was published very recently. I finished it just a few days, really, before it the streets, so there’s nothing I would change. It was done—probably that’s not good. Probably I should have thought through something in the last few days that would make it better. But I finished it and did it with close reference to even things that were happening in July and August of 2024. So the book came out in September; there were changes made that reflect things that were happening in July and early August.
Sarah Spreitzer: Yeah, I was going to say that my copy is still warm. And that perhaps we should send some copies also to our policymakers that are interested in how our colleges and universities set these policies and implement these things.
Mushtaq Gunja: I was going to say the same thing. I feel like one of the big tensions for me as I read this book was I feel like the lawmakers who called our presidents up to the Hill to get interrogated don’t necessarily have Professor Sunstein’s First Amendment framework in their heads as they’re questioning it. I think our administrators are in a very tough position, where not only is there some tension between First Amendment and Title VI, but where Congress wants our presidents to be, our administrators to be on any given issue doesn’t seem to follow your framework. So given that, Professor Sunstein, do you have advice for what a new president of a campus, let’s say, in Cambridge, who’s coming in new, what advice might you give that person?
Cass Sunstein: Well, President Garber is someone I know and greatly admire, and I think he knows what to do. But if there were some, let’s say, random university president, I’d say the following words, just four: Follow the First Amendment. And if asked what you’re going to do, you’d say, “I’m going to follow the First Amendment.” And if you’re asked what that means, you’d say, “There’s a lot of doctrine out there.” Maybe you’re starting to lose your audience, but there’s a lot of stuff courts have said, and it answers the vast majority of questions. And there are some questions that it doesn’t answer, but that sheds lights on those. And I’ll try as best I can to follow the First Amendment. That’s what I’m going to do.
And if there’s anything to say that is not consistent with that, I might say, if I’m at a military academy, we’re going to adhere to the First Amendment to the extent that we possibly can, consistent with what we’re here for. And if it’s a religious institution, I’d say we have a particular identity that is central to who we are. Still, the First Amendment is our lodestar, and our presumption is we’re going to follow it. Of course, some presumptions can sometimes be overcome. We’re a religious university and there’s that.
I love your point about elected representatives. And in the writing of the book, this came late, though it definitely came, that right now a lot of people are focused on what should universities do in the face of student and faculty activity that’s disruptive or threatening or worse? But there’s also a lot of activity, as of course you know, both in state legislatures, in Congress, on the part of administrative bodies in the states, and in the federal government, that could go and maybe has gone, I think has gone in some cases, in directions that are not consistent with the First Amendment. So if you said, let’s say, in a state, you’re the head of some body, “We’re going to have a war on woke here. And part of that is, you can’t teach critical legal studies or things that put America in a bad light.” We’re talking about real First Amendment problems. And the people who are saying that are in some ways the mirror image of the people they like least, who are, let’s say, mandating political correctness.
And for universities to say, “We’re going to follow the First Amendment,” might be matched by public officials saying, “We’re going to follow the First Amendment,” which would restrict what they can do, including with the use of federal funds. So if you said, “We’re going to give federal funds only to organizations that act consistently, educational organizations that act consistently with the views of one political party,” that would be a form of viewpoint discrimination. And we can build out from that case to think of a lot of restrictions on what Congress and regulators of various sorts can do.
And so there’s kind of a beautiful arms control agreement, which we can see being made, where universities agree to stand down with political orthodoxy and insist on, everyone’s welcome here. And their standing down would be accompanied by public officials also standing down and saying, “We got it; everyone’s welcome in our institutions.”
And if you’re right of center and you think that institutions are too left of center, in some cases, that’s completely fair. And to mandate some sort of response is probably not consistent with the First Amendment, but to call it out is fine. And for universities themselves to think, we want intellectual pluralism, that’s I think... I spent a lot of time at the University of Chicago, and intellectual pluralism is in the lifeblood of the place, and that’s part of its amazingness.
Mushtaq Gunja: Well, thank you for the very helpful, practical advice. I didn’t get a chance to take you when I was in law school, and I feel like we were able to, in 35 minutes, get a little bit of a peek into what it’s like to take one of your law school classes. So, thank you so much, Professor Sunstein, for being with us.
Cass Sunstein: Thank you.
Sarah Spreitzer: Thank you.
Mushtaq Gunja: Sure.
Cass Sunstein: A pleasure and an honor.
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