Rather than discussing an aspect of higher education law or the role of higher education lawyers, this month’s column addresses the responsibility of colleges and universities to educate students about the Rule of Law. The proposition is that colleges and universities are uniquely situated to teach students and others the meaning and importance of fundamental legal and constitutional principles, including free speech, equal protection, democratic processes, and individual rights and responsibilities. Lawyers and higher education law are relevant to this discussion, but the basic tenet is that higher education institutions should increase efforts to educate students and communities about the Rule of Law outside of classrooms and outside of law schools through educational, extracurricular, and community outreach activities.
1. It is beyond the scope of this column to analyze the full scope of what is meant by the Rule of Law. (See Trusteeship, “The Rule of Law,” September/October 2020.) One useful definition is a set of principles that ensures that our democratic and constitutional system of government is guided by the fair and equitable application of legal standards as contrasted with authoritarian societies where entrenched power, not law, is the source of authority.
2. There is, at present, an unusually sharp divide between political parties, policy viewpoints, and communities, however defined. Differences of opinion, however, are not the problem. But when conflicting views result in violence, civil unrest, a lack of respect for others, a refusal to cooperate, and a breakdown in discourse, then the very functioning of society is at risk.
3. Perhaps the best example of these divisions on campus is the interplay between free speech and issues of diversity, equity, inclusion, and belonging. One “side” argues that hate speech creates real harm to and safety concerns for individuals and groups who are marginalized and verbally attacked, and that colleges and universities should prohibit speakers and discipline students and employees who espouse racism, sexism, and other forms of hate and disrespect. Another “side” proclaims that all speech is protected by the First Amendment and there is nothing an institution that wishes to or constitutionally must abide by the First Amendment can or should do to restrict it. Some believe this is a generational issue, older generations more likely to support the absolute protections of the First Amendment and students more likely to focus on the exceptions and to identify hate speech as a form of discrimination and harassment. At its core, there is a fundamental disagreement over the meaning of the First Amendment.
4. A second example is the current public debate over state legislation and other government actions that seek to regulate or prohibit teaching critical race theory and other “divisive concepts,” including at colleges and universities. Some view such efforts as necessary to protect students from teachers and institutions who would impose their ideological views on students. Others consider these governmental efforts to be a form of public censorship that distorts and ignores history. Both sides complain about a “cancel culture.” Again, there is disagreement over the meaning of fundamental legal and constitutional principles such as equal protection of the laws.
5. In addition to free speech and race, public debates, on campus and beyond, have highlighted divisions over other issues such as reproductive freedom, guns, race-conscious decision-making, immigration status, and the meaning of privacy. For all of these issues, there are, again, fundamental disagreements on our campuses about the meaning of the legal and constitutional principles that constitute the Rule of Law.
6. Classroom education is one means to address these differences. The thesis of this column, however, is that colleges and universities should expand their educational efforts with other programming, outside of class, including student orientation, speakers, extra-curricular activities, and engagement with our communities to expand our collective understanding of the Rule of Law. Any such programs need to be nonpartisan and balanced. If institutional leadership, including board members who themselves represent divergent opinions, support these educational efforts, colleges and universities can make important contributions to the development of an informed citizenry and a better-functioning society..
Steve Dunham, JD, is a lawyer for Penn State University.
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