T F A R D LegalImpacted Party Interviews

T F A R D Legal/Impacted Party Interviews Rita Dunston & Wes Hillyard EDLP-704 T F A R D

Presentation Outline - Significance of free speech on college campuses - overview - Examples of current free speech issues - Impacted party interview: Dr. Juliette Lanphair, Vice President of Student Affairs - Legal party interview: Audrey Burges, Assistant Attorney General, UMW Legal Counsel - Implications for policy and practice

Free Speech on College Campuses - Overview - Freedom of speech and inquiry remains at the core of of intellectual inquiry and includes the freedom to express and debate (rights protected under the First Amendment) - Recent years have sparked a heightened awareness of free speech issues and controversy on college campuses (e. g. white supremacist rallies at UVC in 2017) - Campus communities (students, faculty, and staff) struggle with the First Amendment’s protection of hate speech - Addressing free speech issues on campuses is a significant undertaking and

Current Free Speech Issues Free speech impacts colleges in different ways, but it is a current issue that many grapple with. Below are several examples of current (some ongoing) free speech issues on college campuses. University of Mary Washington: https: //reason. com/blog/2018/12/20/mary-washington-yik-yak-free-speech-femi Cleveland State University: https: //www. cleveland. com/metro/2017/10/flyer_at_cleveland_state_unive. html Middlebury College: https: //www. insidehighered. com/news/2017/03/03/middlebury-students-shout-down-lecture-charlesmurray University of Florida:

Impacted Party Interview: Dr. Juliette Landphair Vice President of Student Affairs How does her position/area overlap with free speech on campus? - Dr. Landphair oversees many of the commonly impacted areas connected to free speech including the UMW Police Department, Student Activities (including the University Center), the Office of Residence Life, and the James Farmer Multicultural Center. - While free speech intersects with in-classroom work, it is common to occur outside of the classroom. - The division of Student Affairs is instrumental in setting, upholding, and enforcing policies related to free speech - At the Cabinet level, Dr. Landphair works alongside the Provost and Vice President for Equity and Inclusion (including Title IX)

Impacted Party Interview: Dr. Juliette Landphair Vice President of Student Affairs In your experience, how does free speech impact the campus community? - Throughout history, free speech tends to occur at one of three common levels: National Level = large-scale, nationally known speakers that request to speak at large universities (e. g. Richard Spencer and the University of Florida) Mid-Level = Controversial speakers whose view is not in line with everyone on the campus community (e. g. Charles Murray and Middlebury College) Low-Level = Controversial/hateful flyers, posters, symbols, and messages on campus - At all three levels, free speech needs to be protected while ensuring that the values of the university community are upheld; this becomes a challenge with free speech.

Impacted Party Interview: Dr. Juliette Landphair, VP of Student Affairs How can a university community plan for and address free speech issues? - Preparation requires attention on two major areas, policies and trust - both are required when preparing for and addressing free speech issues that arise. Policies: ● Policies should be specific and outline time, place, and manner for speaking requests ● Conversations should be required prior to an event taking place, and involved key parties ● The university should work with counsel to best understand the law and legal limitations Trust ● It can be challenging for students to understand free speech and its protection of hate speech - trust must be developed between the students and administration prior to issues arising. ● Trust development taps into the ethics of leadership

Impacted Party Interview: Dr. Juliette Landphair, VP of Student Affairs As the Vice President, how do you see the First Amendment impacting students at your university? - As a liberal arts institution, the rights awarded through the First Amendment provide a source of pride - free speech is a value that is great for our students and our nation. - By way of policies and developed trust between the students and the institution, there can be a balance between free speech and hate speech; this is not an easy goal to achieve, but we have seen it done (e. g. University of Florida’s experience with Richard Spencer on campus) - Connecting with student groups is a powerful way to build trust and understand the students’ perspective and feelings (e. g. regular attendance at Multicultural Student Organization meetings)

Impacted Party Interview: Audrey Burges Asst. Attorney General and UMW Legal Counsel How does her position/area overlap with free speech on campus? - Provides legal counsel to the UMW community as they work through legal cases (one day a week is spent on campus meeting with administrators). - Often, she does not work with students in the legal counsel role, unless a case has elevated to her level - when this occurs there is often a failure to have resolved the issue between the student and university. - She has a career in education law having worked at both K-12 and higher education institutions this allows for her to understand the difference in law interpretation at both levels.

Impacted Party Interview: Audrey Burges Asst. Attorney General and UMW Legal Counsel From a legal perspective, how does free speech impact the campus community? - When people talk about free speech, the constitution says what it says, and this also mean protection of hate speech (e. g. students struggle to understand how an institution can be inclusive while at the same time allowing hate speech) - Education law looks different than in K-12 litigation - in higher education, most litigations are settled between the institution and the plaintiff prior to going to trial (it is always in the institution's best interest to settle before going to trial) - Higher education institutions strive to preserve, within policy, guidelines and limitations to free speech

Impacted Party Interview: Audrey Burges Asst. Attorney General and UMW Legal Counsel From a legal perspective, what are the challenges surrounding the enforcement of free speech? - Cases today are measured by rulings of a previous era (e. g. using the Tinker case to evaluate a modern day litigation) - the pace of litigation is always decades behind - “Time, Place, and Manner” is changing constantly and institutions are unable to rewrite policies that do not infringe on content - The internet is driving litigations and the court systems have not caught up with changes based on a realtime culture shift (e. g. case briefing are still defining the “internet” even though it has been around for 30 years) - Students come into the higher education environment feeling they can set the parameters and rules, of which free speech is not one they can change - as institutions attempt to define free speech with additional

Synthesis for practice Using that was gleaned from the impacted party interviews from different perspectives (legal counsel and student affairs administration), the thoughts can be used for future practice by those who lead the campus community. 1. While free speech is protected by the First Amendment, leaders must use an ethical lens to develop policy, establish code of conduct, and to avoid litigation. 2. When writing policies, less is more in order to avoid potential loopholes. 3. There must be an established level of trust within the community (students, faculty, and administration) so that while there is a protection of the First Amendment rights, hate speech does not align with the institution's core values. 4. Prior planning and constant evaluation are necessary in order to anticipate potential issues that may arise (e. g. how to respond when a controversial speaker requests to speak on campus). 5. Collaboration between legal counsel and the university administration is key given the complex and ever-changing legal landscape in education law.