[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]





 
 FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES

=======================================================================

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON THE CONSTITUTION 
                           AND CIVIL JUSTICE

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 2, 2015

                               __________

                           Serial No. 114-31

                               __________

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                       COMMITTEE ON THE JUDICIARY

                   BOB GOODLATTE, Virginia, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        JERROLD NADLER, New York
LAMAR S. SMITH, Texas                ZOE LOFGREN, California
STEVE CHABOT, Ohio                   SHEILA JACKSON LEE, Texas
DARRELL E. ISSA, California          STEVE COHEN, Tennessee
J. RANDY FORBES, Virginia            HENRY C. ``HANK'' JOHNSON, Jr.,
STEVE KING, Iowa                       Georgia
TRENT FRANKS, Arizona                PEDRO R. PIERLUISI, Puerto Rico
LOUIE GOHMERT, Texas                 JUDY CHU, California
JIM JORDAN, Ohio                     TED DEUTCH, Florida
TED POE, Texas                       LUIS V. GUTIERREZ, Illinois
JASON CHAFFETZ, Utah                 KAREN BASS, California
TOM MARINO, Pennsylvania             CEDRIC RICHMOND, Louisiana
TREY GOWDY, South Carolina           SUZAN DelBENE, Washington
RAUL LABRADOR, Idaho                 HAKEEM JEFFRIES, New York
BLAKE FARENTHOLD, Texas              DAVID N. CICILLINE, Rhode Island
DOUG COLLINS, Georgia                SCOTT PETERS, California
RON DeSANTIS, Florida
MIMI WALTERS, California
KEN BUCK, Colorado
JOHN RATCLIFFE, Texas
DAVE TROTT, Michigan
MIKE BISHOP, Michigan

           Shelley Husband, Chief of Staff & General Counsel
        Perry Apelbaum, Minority Staff Director & Chief Counsel
                                 ------    
                                 
                                 
                                 
                                 
                                 
                                 
                                 

           Subcommittee on the Constitution and Civil Justice

                    TRENT FRANKS, Arizona, Chairman

                  RON DeSANTIS, Florida, Vice-Chairman

STEVE KING, Iowa                     STEVE COHEN, Tennessee
LOUIE GOHMERT, Texas                 JERROLD NADLER, New York
JIM JORDAN, Ohio                     TED DEUTCH, Florida

                     Paul B. Taylor, Chief Counsel

                    James J. Park, Minority Counsel
                    
                    
                    
                    
                    
                    
                    
                    
                            C O N T E N T S

                              ----------                              

                              JUNE 2, 2015

                                                                   Page

                           OPENING STATEMENTS

The Honorable Trent Franks, a Representative in Congress from the 
  State of Arizona, and Chairman, Subcommittee on the 
  Constitution and Civil Justice.................................     1
The Honorable Steve Cohen, a Representative in Congress from the 
  State of Tennessee, and Ranking Member, Subcommittee on the 
  Constitution and Civil Justice.................................     3
The Honorable Bob Goodlatte, a Representative in Congress from 
  the State of Virginia, and Chairman, Committee on the Judiciary     5
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     6

                               WITNESSES

Greg Lukianoff, President and Chief Executive Officer, Foundation 
  for Individual Rights in Education
  Oral Testimony.................................................    20
  Prepared Statement.............................................    22
Kimberlee Wood Colby, Director, Center for Law and Religious 
  Freedom, Christian Legal Society
  Oral Testimony.................................................    39
  Prepared Statement.............................................    41
Jamin B. Raskin, Professor of Law, and Director, Program on Law 
  and Government, American University Washington College of Law
  Oral Testimony.................................................    59
  Prepared Statement.............................................    62
Wendy Kaminer, Writer/Lawyer, and Free Speech Feminist, Boston, 
  MA
  Oral Testimony.................................................    66
  Prepared Statement.............................................    68

                                APPENDIX
               Material Submitted for the Hearing Record

Supplemental Statement of Wendy Kaminer, Writer/Lawyer, and Free 
  Speech Feminist, Boston, MA....................................    86
Material submitted by the Honorable Steve Cohen, a Representative 
  in Congress from the State of Tennessee, and Ranking Member, 
  Subcommittee on the Constitution and Civil Justice........89
                       deg.OFFICIAL HEARING RECORD
          Unprinted Material Submitted for the Hearing Record

List of submitted material.......................................    95

  http://docs.house.gov/meetings/JU/JU10/20150602/103548/HHRG-
  114-
  JU10-20150602-SD003.pdf


 FIRST AMENDMENT PROTECTIONS ON PUBLIC COLLEGE AND UNIVERSITY CAMPUSES

                              ----------                              


                         TUESDAY, JUNE 2, 2015

                        House of Representatives

                   Subcommittee on the Constitution 
                           and Civil Justice

                       Committee on the Judiciary

                            Washington, DC.

    The Subcommittee met, pursuant to call, at 2:23 p.m., in 
room 2141, Rayburn Office Building, the Honorable Trent Franks 
(Chairman of the Subcommittee) presiding.
    Present: Representatives Franks, Goodlatte, Gohmert, Cohen, 
and Conyers.
    Staff Present: (Majority) John Coleman, Counsel; Tricia 
White, Clerk; (Minority) James J. Park, Minority Counsel; and 
Veronica Eligan, Professional Staff Member.
    Mr. Franks. We will now turn to our next order of business, 
our hearing on First Amendment Protections on Public Colleges 
and University Campuses. We want to welcome all the witnesses 
here and all the audience here today.
    June is graduation season for many colleges and 
universities across America. It is a time of reflection, as 
these graduates take what they have experienced in college and 
go off to pursue their own happiness in a world that consists 
of people of different views, perspectives, philosophies, and 
beliefs. So it is timely that today's hearing is about 
protecting students' constitutional rights on public colleges 
and university campuses, particularly the rights to free 
expression and association.
    The First Amendment of the Constitution prohibits the 
government, including governmental entities such as public 
colleges and universities, from encroaching on free speech and 
the free exercise of religion. The First Amendment of the 
United States of America clearly states, ``Congress shall make 
no law respecting an establishment of religion, or prohibiting 
the free exercise thereof; or abridging the freedom of speech, 
or of the press; or the right of the people peaceably to 
assemble.''
    Yet regarding free speech, the American Association of 
Colleges and Universities found in a 2010 survey of 24,000 
college students that only 36 percent strongly agreed with the 
following statement that ``it is safe to hold unpopular views 
on campus.'' Of 9,000 campus professionals, only 19 percent 
agreed with the same statement. As students progress toward 
their senior year, they become even more doubtful that it is 
safe to hold unpopular views on campuses.
    We should all let that sink in for a moment. According to 
the American Association of College and University's own 
survey, an overwhelming majority of students and faculty were 
not confident that it was safe to hold unpopular views on 
campus.
    Regarding religious liberty, one of our witnesses today, 
Greg Lukianoff, in his book, ``Unlearning Liberty: Campus 
Censorship and the End of American Debates,'' writes, ``While 
it sometimes seems that there is no rhyme or reason to what can 
get a student group in trouble on campus, certain trends emerge 
over time. In particular, the fundamental misunderstanding of 
tolerance and freedom of association is widely applied to 
evangelical Christian groups. If you told me 12 years ago that 
I, a liberal atheist, would devote a sizable portion of my 
career to Christian groups, I might have been surprised. But 
almost from my first day at the Foundation for Individual 
Rights in Education, I was shocked to realize how badly 
Christian groups are often treated.''
    Indeed, a survey conducted by the Institute for Jewish and 
Community Research showed that the only group that a majority 
of the faculty were comfortable admitting that evoked strong 
negative feelings in them were evangelical Christians.
    According to a 2015 report published by the Foundation for 
Individual Rights in Education, 55 percent of the 437 colleges 
and universities they examined ``maintain policies that 
seriously infringe upon the free speech rights of students''--
55 percent. That is a pretty shocking number.
    With very few and very narrow exceptions, the Supreme Court 
has declared that the government cannot regulate speech based 
on its content. The Court has stated that, above all else, the 
First Amendment means that government has no power to restrict 
expression because of its message, its ideas, its subject 
matter, or its content.
    This core principle is neither conservative nor liberal. 
Indeed, it is to the mutual benefit of all to oppose the 
silencing of others. As Thomas Paine stated in his 
``Dissertations on the First Principles of Government,'' ``He 
that would make his own liberty secure must guard even his 
enemy from opposition, for if he violates this duty, he 
establishes a precedent that will reach to himself.''
    Thomas Jefferson stated it another way, but even more 
directly when he said, ``I have sworn upon the altar of God 
eternal hostility against every form of tyranny over the mind 
of man.''
    A Nation of free people must be vigilant of government 
encroachment on unpopular thought. We must be particularly 
vigilant to protect the freedom of religious exercise since it 
is a cornerstone of all other freedoms.
    Today in America, we face the very real danger of allowing 
students in our public colleges and universities to graduate 
without experiencing what it is that makes us truly free as 
Americans. Whether on college campuses or anywhere else across 
this Nation, it is our undeniable and sworn duty to guard those 
sacred First Amendment rights contained in our Constitution for 
our young and for all Americans, and to make sure that we pass 
them along intact for all American generations to come.
    Now before I yield to the Ranking Member for an opening 
statement, I think that we are ready for the vote.
    [Break.]
    Mr. Franks. So now before I yield to the Ranking Member for 
an opposing statement, I would first like to show a short ``Fox 
and Friends'' interview with student Bianca Travis, who is the 
president of a Christian student group that this year lost its 
official status at California State University, because the 
group requires student leaders to hold the same religious 
beliefs as the organization.
    [Video presentation.]
    Mr. Franks. And I would first thank the Ranking Member for 
his indulgence.
    And I would now yield to Mr. Cohen from Tennessee for his 
opening statement.
    Mr. Cohen. Thank you, Mr. Chair. Normally, it is only when 
I am at the doctor's office that I have to watch Fox, but it is 
free speech.
    And I want to commend you for having two ACLU-connected 
people as witnesses on the Republican side. This is, indeed, a 
first. Two that they have chosen, but we can say three and that 
makes it a better story.
    I have been a long supporter of the First Amendment and the 
ACLU, the First Amendment right to free speech, as well as its 
other rights.
    I sponsored the SPEECH Act, which became law. Chairman 
Franks cosponsored it, and President Obama signed it into law. 
It required American courts to deny recognition or enforcement 
of foreign defamation judgments that did not comport with our 
First Amendment speech protections.
    It would be difficult for anybody to think back upon the 
1960's and 1970's when so much happened in our country that was 
revolutionary concerning Vietnam and civil rights where free 
speech wasn't a part of the discourse by college and university 
students. Freedom to speak was vital to the anti-Vietnam War, 
pro-civil rights, other social justice movements at the time. 
And those sentiments were at the time unpopular or offensive to 
some listeners, but they led to a change for the better in our 
society.
    I share the basic commitment that all of our witnesses have 
to open inquiry and the free and vigorous exchange of ideas 
that is the hallmark of higher education. And I share the 
skepticism that any First Amendment defender feels toward 
government attempts to limit speech on the basis of its 
offensiveness.
    It is not a coincidence that most of the Supreme Court's 
decisions governing the First Amendment's scope today concern 
speech or expressive conduct that would be offensive to many 
listeners. Such unpopular speech is exactly the kind the First 
Amendment is meant to protect, and there is no surprise that 
the court has protected things like flag-burning, insensitive 
protests at military funerals, and clothing with expletives 
written on them worn in open court.
    At the same time, I am sympathetic to the concerns 
animating the promulgation of antiharassment policies at 
universities. These concerns are not hypothetical, rather real 
harassment on the basis of race, gender, religion, ethnicity, 
and sexual orientation is a problem.
    I have read about and heard about problems at UCLA. Ms. 
Beyda wanted to be on a college group and the board didn't vote 
her on because she was Jewish, assuming that she wasn't going 
to vote like they wanted her to vote on divestment of 
investments with Israel. This was difficult. You wouldn't think 
this would happen at UCLA, but it did.
    In fact, anti-Semitism is prevalent on many campuses, and 
maybe people don't even understand when they are being anti-
Semitic.
    According to the National Demographic Survey of American 
Jewish College Students conducted by researchers at Trinity 
College, 54 percent of Jewish students reported experiencing 
anti-Semitism on campus in the first 6 months of the 2013-2014 
school year--54 percent, anti-Semitism, in the first 6 months.
    This follows the 2013 Pew Research Center report that found 
22 percent of younger Jewish Americans reported being called an 
offensive name based on their Jewish identity.
    According to the American Association of University Women, 
80 percent of female college students report having been 
sexually harassed at their school by a peer, and 25 percent of 
men admitted targeting others with homophobic slurs. According 
to another study, 20 percent of the college students surveyed 
said that harassment caused the inability to concentrate in 
class, and 23 percent said it prevented them from even 
attending class.
    Part of the problem is the lack of student body diversity. 
According to a study in the Chronicle of Higher Education, the 
less diverse the student body, the higher the percentage of 
minority students who report experiencing discrimination, with 
more than 60 percent reporting such discrimination at the least 
diverse schools. Great support for public education.
    Notwithstanding the existence of civil rights laws that are 
designed to address harassment on the basis of protected 
characteristics, harassment interferes with the student right 
to a safe learning environment and remains a very real concern. 
Too often, the need for a vigorous defense of free speech 
values results in dismissing or minimizing some legitimate 
concerns motivating attempts to regulate verbal conduct.
    This is not to justify in any way overly broad, vague, or 
subjective policies that sweep in protected speech in the name 
of addressing harassment, but to challenge for the First 
Amendment defenders is to ensure that pure harassment is 
deterred and punished while at the same time staying true to 
our constitutional values.
    So it is a very difficult subject. Mr. Chair, I concur with 
some of the statements made in the broadcast by the student. It 
would be difficult for somebody who doesn't believe to be the 
leader of that group. But times, they are a-changin'. And, 
indeed, we can see, possibly, where a man could lead a 
sorority, but that is another issue.
    I yield back the balance of my time.
    Mr. Franks. There would probably be plenty of volunteers.
    With that, I thank the gentleman, and I would yield to the 
Chairman of the Judiciary Committee, Mr. Goodlatte from 
Virginia.
    Mr. Goodlatte. Thank you, Mr. Chairman. I want to welcome 
all of today's witnesses.
    According to the Department of Education, about 21 million 
students were expected to attend a college or university in 
2014. And according to the U.S. Bureau of Labor Statistics, 
about 70 percent of high school graduates in 2014 were enrolled 
in colleges or universities.
    As more and more young people go to college, they will be 
exposed to and shaped by campus policies, including policies 
regulating speech. But what effect will that have?
    Research shows that young adults are often less tolerant of 
free speech than older generations. The results of overly 
restrictive campus speech policies are noted with increasing 
frequency in the press.
    On September 17, 2013, for example, a student at a 
community college in California was barred by administrators 
from distributing copies of the United States Constitution 
because the student didn't seek prior permission. He was also 
told that such activity must be performed in a narrowly 
designated free speech zone.
    Administrators at a public university in Alabama, according 
to a complaint filed in Federal court by Alliance Defending 
Freedom, denied a student group request in 2013 and 2014 to set 
up a pro-life display in an area commonly used by other groups 
for expressive activities. Instead, according to the complaint, 
university administrators insisted they congregate in a 
narrowly designated free speech zone because the group 
advocates for a position that involves political and social 
controversy.
    A student in Texas recently filed a suit against her public 
college because she and a classmate were displaying signs 
supporting the Second Amendment when they were approached by a 
campus official and three police officers and told they 
couldn't hold the signs again in the public area without 
special permission. The official had apparently received 
complaints that their signs were offensive.
    There are many, many more examples. And the huge volume of 
personal accounts coming from our Nation's public colleges and 
universities is disturbing. The Foundation for Individual 
Rights in Education alone lists on its Web site nearly 390 
reported cases of speech violation. Given that more than half 
of American colleges and universities maintain what appear to 
be unconstitutional speech policies, no doubt many, many more 
cases of free speech infringement have gone unreported.
    Policies that limit free speech limit the expression of 
ideas. And no one--no one--can be confident in their own ideas 
unless those ideas are constantly tested through exposure to 
the widest variety of opposing arguments. This is especially 
crucial in a democracy.
    The Founders of our country understood this clearly. George 
Washington and Thomas Jefferson wrote of the importance of 
knowledge in a democracy. Washington wrote, ``Knowledge is, in 
every country, the surest basis of public happiness. . . . In 
proportion as the structure of a government gives force to 
public opinion, it is essential that public opinion should be 
enlightened.''
    And as Thomas Jefferson reminded us, ``Knowledge is power. 
. . . If a nation expects to be ignorant--and free--in a state 
of civilization, it expects what never was and never will be.''
    James Madison wrote of the inherent connection between free 
speech learning and liberty writing, and I quote, ``What 
spectacle can be more edifying or more seasonable, than that of 
Liberty and Learning, each leaning on the other for their 
mutual and surest support. . . . A popular Government without 
popular information, or the means of acquiring it, is but a 
Prologue to a Farce or a Tragedy, or perhaps both. . . . And a 
people who mean to be their own Governors, must arm themselves 
with the power which knowledge gives.''
    John Adams wrote specifically of the young, writing that, 
``It should be your care, therefore, and mine to elevate the 
minds of our children and exalt their courage. If we suffer 
their minds to grovel and creep in infancy, they will grovel 
all their lives.''
    This is an important topic about one of our fundamental 
freedoms as Americans. I thank Chairman Franks for holding this 
hearing, and I thank our witnesses for coming today. I look 
forward to your testimony.
    Mr. Franks. And I thank the Chairman.
    And I would know yield to the Ranking Member of the 
Committee, Mr. Conyers from Michigan.
    Mr. Conyers. Thank you, Mr. Chairman.
    I, too, welcome the witnesses and appreciate the importance 
of this hearing entitled ``First Amendment Protections on 
Public College and University Campuses.''
    Today's hearing gives us an opportunity to consider the 
important issue of how best to ensure the protection of 
fundamental constitutional rights for college and university 
students while also protecting them from hateful and demeaning 
harassment.
    To begin with, harassment and intimidation based on race, 
sex, religion, sexual orientation remains a serious problem on 
campuses today. Hostility against racial and religious 
minorities, women, lesbian, gay, and transgender students 
remains all too common, despite decades of efforts aimed at 
combating discrimination.
    Just a few months ago, a video surfaced of a group of White 
fraternity members at the University of Oklahoma singing a 
horribly racist song, one that repeatedly used the ``n'' word 
and referred to hanging African-Americans from a tree.
    To understand the kind of climate on campuses that many 
minority students face and that university administrators must 
address, according to the American Association of University 
Women, 62 percent of female college students report having been 
sexually harassed at their university, and 80 percent of that 
harassment was committed by a peer. The same study also 
revealed that 51 percent of male college students admitted to 
sexually harassing someone in college, with 22 percent 
acknowledging they engaged in that kind of harassment often.
    According to a study by the Chronicle of Higher Education, 
25 percent of lesbian and gay students report having been 
harassed because of their sexual orientation, as well as a 
third of all transgendered students.
    Without question, universities must ensure equal 
educational opportunities for their students, and such 
opportunities are effectively denied in a hostile and 
intimidating environment. While addressing discrimination, 
public universities must also ensure compliance with the 
Constitution's guarantee of freedom of speech, which is one of 
our Nation's bedrock values.
    The right to free speech undergirds our democracy and is 
especially critical to supporting another key role of the 
university, which is to foster open inquiry and the free and 
vigorous exchange of ideas. But restrictions on speech that 
seek to prohibit offensive speech can also silence First 
Amendment protected speech, as there is no First Amendment 
exception for offensive speech.
    Indeed, the First Amendment is supposed to protect speech 
that most of us find offensive, because it is precisely that 
kind of unpopular speech that most needs protection. And we 
protect unpopular speech to ensure that all speech is protected 
and that our political debates remain robust and open.
    It is not enough, however, to simply say that because the 
Constitution makes it hard for public colleges and universities 
to limit speech that they should do nothing about 
discrimination and harassment. Wherever there is a hate speech 
incident on campus, administrators and faculty have a right and 
duty to speak out against such bigotry. Longer term, there 
ought to be enhanced efforts to increase diversity in the 
student body and faculty at public universities.
    Finally, there should be ongoing education for university 
students and faculty on the evils of bigotry against 
minorities, women, and others who face harassment and 
discrimination based on protected characteristics.
    While I do not pretend that we can fully resolve the 
longstanding debate over hate speech and the First Amendment on 
public campuses during the course of this hearing, I hope we 
can at least have a productive discussion about the proper 
balance between protecting free speech and ensuring equal 
education opportunity for all students.
    Accordingly, I very much look forward to hearing the 
testimony from our witnesses. Thank you, Mr. Chairman.
    Mr. Franks. And I thank the gentleman.
    Without objection, other Members' opening statements will 
be made part of the record.
    So let me now introduce our witnesses.
    Our first witness is Greg Lukianoff, president and CEO of 
Foundation for Individual Rights in Education. He is the author 
of two books, ``Unlearning Liberty: Campus Censorship and the 
End of the American Debate'' and ``Freedom From Speech.''
    Our second witness is Kim Colby, senior counsel for the 
Christian Legal Society's Center for Law and Religious Freedom, 
where she worked for over 30 years to protect student rights to 
meet for religious speech on college campuses. Ms. Colby has 
represented religious groups in several appellate cases, 
including two cases heard by the United States Supreme Court.
    Our third witness is Jamie Raskin, a state senator in 
Maryland and a professor of constitutional law at American 
University's Washington College of Law. He also taught at Yale 
Law School and authored several books, including ``We the 
Students: Supreme Court Cases For and About Students.''
    Our fourth and final witness today is Wendy Kaminer, a 
lawyer, social critic, and freelance journalist. She is an 
adviser to the Foundation for Individual Rights in Education 
and a member of the Massachusetts State Advisory Committee to 
the U.S. Civil Rights Commission.
    We welcome you all.
    Each of the witness's written statements will be entered 
into the record in its entirety, so I would ask each of you to 
summarize his or her testimony in 5 minutes or less. And to 
help you stay within that time, there is a timing light in 
front of you. The light will switch from green to yellow, 
indicating that you have 1 minute to conclude your testimony. 
When the light turns red, it indicates that the witness's 5 
minutes have expired.
    Before I recognize the witness, it is the tradition of the 
Subcommittee that they be sworn, so if you would please stand 
to be sworn?
    Do you solemnly swear that the testimony that you are about 
to give will be the truth, the whole truth, and nothing but the 
truth, so help you God?
    Please be seated.
    Let the record reflect that the witnesses answered in the 
affirmative.
    I will now recognize our first witnesses, Mr. Lukianoff,
    Sir, please turn that microphone on, if you have not 
already done so.

  TESTIMONY OF GREG LUKIANOFF, PRESIDENT AND CHIEF EXECUTIVE 
     OFFICER, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION

    Mr. Lukianoff. I have a PowerPoint.
    Mr. Franks. Do we want to start the PowerPoint first? Okay.
    [The PowerPoint presentation follows:]
    
    
    
    
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                      __________
    Mr. Lukianoff. My name is Greg Lukianoff. I am a First 
Amendment specialized attorney and president and CEO of the 
Foundation for Individual Rights in Education, also known as 
FIRE. I am here to testify about the serious threats to free 
speech and academic freedom on campus.
    Since I generally don't issue trigger warnings, I will go 
ahead and show the first slide. I show this not to shock you, 
but to establish that the case law protecting freedom of speech 
on campus is extraordinarily strong. This is a cartoon 
depicting police officers raping the Statue of Liberty that the 
Supreme Court found was clearly protected speech on a public 
college campus. Subsequent case law has overturned virtually 
any attempt in higher education to ban or limit speech on the 
basis of its offensiveness.
    Nevertheless, here is a classic example of the kind of 
cases I deal with. In 2007, a student was found guilty of 
racial harassment without so much as a hearing for publicly 
reading this book. The cover of the book, which ironically 
celebrates the defeat of the Klan, was viewed as offensive by a 
university employee. This incident took place at a public 
university, but it nonetheless took the combined efforts of 
FIRE, the ACLU, and the Wall Street Journal, to get the 
university to back down.
    And I deal with cases like this on a regular basis. But 
despite the strength of case law, according to FIRE's extensive 
research, the most extensive ever conducted into campus speech 
codes, we have found that 55 percent of them maintain codes 
that severely depart from First Amendment standards.
    Less than 2 weeks ago, this free speech zone at Blinn 
College in Texas--look at that--we filed a lawsuit against 
them. Blinn is a public college bound by the First Amendment. 
But when a student wanted to protest in favor of her Second 
Amendment rights, she was told that she had to limit her free 
speech activities to this tiny zone.
    FIRE's research shows that nearly one out of every six 
universities maintain such ludicrous free speech zones, and 
this is despite the fact that we have been fighting these 
quarantines for almost our entire 15-year existence.
    For example, here you will see the infamous Texas Tech free 
speech gazebo where, back in 2003 anti-Iraq war students were 
told they had to limit their protests. Though these zones fail 
in court and in the court of public opinion, FIRE has had to 
file 10 lawsuits in the past 1.5 years, mostly dealing with 
these zones.
    And then there are the harassment-based speech codes. Here 
is an example from Syracuse University, where they flat out ban 
offensive speech.
    Anyone with passing knowledge of the First Amendment knows 
that the government cannot ban speech merely because it is 
offensive. Nonetheless, campuses claim that Federal law 
requires them to ban such speech.
    Here are some additional examples of harassment-based 
speech codes.
    And while the Department of Education had been helpful in 
the past by letting universities know that Federal anti-
discrimination law cannot be used to justify passing campus 
speech codes, unfortunately, in 2013, the Department of 
Education issued a ``blueprint'' to every university in the 
country muddying the waters.
    In a settlement with the University of Montana, they 
defined harassment as merely unwelcome speech and explicitly 
rejected the reasonable person standard.
    While the Department of Education backed away somewhat from 
this being a national blueprint in a letter sent to me, they 
must clarify to every university in the country that Federal 
harassment law cannot be used as a justification for 
unconstitutional speech codes.
    We propose Congress take three actions on three fronts.
    First, pass our campus anti-harassment act, which simply 
asks the Federal Government to provide a clear definition of 
actionable harassment based on the Supreme Court's holding in 
Davis v. Monroe County, a 1999 case dealing with peer-on-peer 
harassment. This single act would eliminate an entire category 
of the most common, tenacious and unconstitutional speech codes 
in a single stroke.
    Congress should pass a law declaring open areas on public 
campuses as traditional public forums, which would end absurd 
and tiny free speech zones while still allowing universities to 
apply common sense time, place, and manner restrictions.
    And lastly, Congress should pass legislation making it 
clear that professors' free speech rights are not limited by 
the Garcetti v. Ceballos Supreme Court decision.
    I explain all of these in much greater detail in my written 
testimony.
    Across the political spectrum, I believe we all must agree 
that free speech belongs on our college campuses. Together, we 
can make sure that universities remain a true marketplace of 
ideas. Thank you.
    [The prepared statement of Mr. Lukianoff follows:]*
---------------------------------------------------------------------------
    *Note: Supplemental material submitted with this statement is not 
printed in this hearing record but is on file with the Subcommittee and 
the statement, in its entirety, can be accessed at:

      http://docs.house.gov/meetings/JU/JU10/20150602/103548/
      
      HHRG-114-JU10-Wstate-LukianoffG-20150602.pdf.
      
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               __________
    Mr. Franks. I thank you, sir.
    We would now recognize our second witness, Ms. Colby.
    And if you would make sure that microphone is on?

TESTIMONY OF KIMBERLEE WOOD COLBY, DIRECTOR, CENTER FOR LAW AND 
           RELIGIOUS FREEDOM, CHRISTIAN LEGAL SOCIETY

    Ms. Colby. Chairman Franks, Ranking Member Cohen, and 
Members of the Subcommittee, I am Kim Colby, director of 
Christian Legal Society's Center for Law and Religious Freedom, 
where I have worked for over 30 years to protect student rights 
to meet for religious speech on campus.
    Thank you for inviting me to testify regarding the ongoing 
discrimination that religious student groups experience on 
campuses across the country.
    On a typical university campus, hundreds of student groups 
meet to discuss political, social, and philosophical ideas. 
Religious student organizations enrich this marketplace of 
ideas. Often, the religious groups are among the more diverse 
student groups, drawing students from a wide range of ethnic 
and economic backgrounds.
    For 40 years, religious student groups too often have been 
denied their right to meet on campus. In the 1970's and 1980's, 
many universities would invoke the establishment clause to 
justify discriminating against religious groups. But the 
Supreme Court ruled in 1981 and 1995 that religious groups had 
free speech rights to meet on campus, like other student 
groups.
    After the Supreme Court removed the establishment clause as 
justification for excluding religious groups, some university 
administrators began to misinterpret and misuse their 
university nondiscrimination policies to exclude religious 
groups from campus, as you saw with Bianca's interview. For the 
past 20 years, many colleges have told religious groups they 
must leave campus because it is religious discrimination for a 
religious group to require its leaders to agree with it 
religious beliefs. But it is common sense and basic religious 
liberty, not discrimination, for a religious group to expect 
its leaders to share its core religious beliefs.
    Nondiscrimination policies are good and essential, but they 
are supposed to protect religious students, not drive them from 
campus. Properly interpreted, nondiscrimination policies and 
student religious liberty are eminently compatible. 
Universities need not misinterpret their policies and many do 
not. Indeed, as a commendable best practice, some universities 
have embedded robust protection for religious liberty in their 
nondiscrimination policies.
    I want to just mention two recent examples that illustrate 
the discrimination religious students too often face. In 2011, 
Vanderbilt University said it was religious discrimination for 
a Christian Legal Society student group to expect its leaders 
to lead its Bible study, prayer, and worship. Vanderbilt 
demanded that another Christian group delete five words from 
its leadership requirements, if it wanted to remain on campus. 
Those five words were ``personal commitment to Jesus Christ.'' 
The students left campus rather than recant their core 
religious belief.
    In the end, Vanderbilt forced 14 Catholic and evangelical 
Christian student groups from campus. While Vanderbilt refused 
to allow religious groups to have religious leadership 
requirements, it announced that fraternities could continue to 
engage in sex discrimination in their selection of both leaders 
and members.
    With 437,000 students on 23 campuses, the California State 
University is the largest 4-year university system in the 
Nation. This past year, Cal State withdrew recognition for many 
religious groups. Several had met for over 40 years on Cal 
State campuses with religious leadership requirements. But 
under a new policy, as the Cal State administrator said in the 
interview you heard, ``What they cannot be is faith-based where 
someone has to have a profession of faith to be that leader.''
    California State also applies a double standard. 
Fraternities can choose their leaders and members based on sex, 
but religious groups cannot choose their leaders based on 
religious belief.
    Our Nation's colleges are at a crossroads. They can respect 
student freedom of speech, association, and religion, or they 
can discriminate against religious students who refuse to 
abandon their basic religious liberty. The road colleges choose 
is important not only for the students threatened with 
exclusion and not only to preserve the diversity of ideas on 
college campuses, but also because the lessons learned on 
college campuses inevitably spill over into our broader civil 
society.
    I look forward to answering your questions.
    [The prepared statement of Ms. Colby follows:]**
---------------------------------------------------------------------------
    **Note: Supplemental material submitted with this statement is not 
printed in this hearing record but is on file with the Subcommittee and 
the statement, in its entirety, can be accessed at:

      http://docs.house.gov/meetings/JU/JU10/20150602/103548/
      
      HHRG-114-JU10-Wstate-ColbyK-20150602.pdf.
      
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                   __________
    Mr. Franks. I thank the gentlelady.
    I would know recognize our third witness, Mr. Raskin.
    And, sir, if you would make sure that microphone is on?

 TESTIMONY OF JAMIN B. RASKIN, PROFESSOR OF LAW, AND DIRECTOR, 
 PROGRAM ON LAW AND GOVERNMENT, AMERICAN UNIVERSITY WASHINGTON 
                         COLLEGE OF LAW

    Mr. Raskin. Thank you very much. I am delighted to be with 
you.
    Higher education has been a critical force in advancing 
free inquiry in America. And as Chairman Goodlatte noted, his 
fellow Virginian Thomas Jefferson was a key force in defining 
the university as a place of secular inquiry free from both 
governmental and religious compulsion and dogma and repression.
    It is also one of America's leading industries, higher 
education, and it is also, I would say, the paradigm exemplar 
of free discourse and debate in our vibrant, pluralist, and 
multicultural democracy. So if we have no freedom of thought 
and speech on campus, it is hard to imagine where we are going 
to have it in the United States.
    I want to set forth three principles that I think should 
govern political speech on campus, and I should add that 
although the presence of state action may arguably be missing 
from most private colleges and universities, there is no reason 
that these free speech principles should not operate for 
private colleges and universities, too, from Harvard and Yale 
to Southern Methodist and Oberlin and Liberty University, at 
least to the extent that these institutions want to think of 
themselves as centers of free thought and inquiry rather than 
centers of dogma and propaganda. And this may be the major 
point of difference between my perspective on these matters and 
my good friend Greg Lukianoff, who stands up zealously and 
strongly for the free speech of rights of students at public 
universities and colleges and some private universities but not 
others.
    I think that Liberty University, for example, should no 
more be able to exclude a gay student group than Harvard or 
Berkeley should be able to exclude an antigay student group. So 
I would defend free speech across-the-board, public and 
private, which I suppose makes me the strongest free speech 
absolutist here. Or maybe not. I will wait to hear from my 
friend Wendy Kaminer, too.
    So the three principles, first, the political and social 
and artistic expression of students should be considered part 
of the educational experience rather than a detraction or 
diversion from it. So this means that the common areas of the 
university, such as the streets, the sidewalks, the greens, the 
commons, the cafeteria, the TV station, the radio station, the 
atriums, and so on, should all be treated as traditional public 
fora or at least limited public fora for the purposes of social 
communication and First Amendment analysis. These areas are 
paid for, at least substantially, by taxpayers, and they lend 
themselves to expressive activity and assembly of students and 
faculty, staff members and alumni, and, indeed, other members 
of the public.
    Now, of course, public expression and protest on campus 
must be subject, as everywhere else, to reasonable time, place, 
and manner restrictions. You can have your pro-choice or your 
pro-life rally on the campus green, but not in the hallway 
outside a history lecture in such a way as to make it 
impossible for anyone to hear the lecture proceed.
    This distinction permeates Supreme Court jurisprudence 
governing student speech. As the Court wrote in the seminal 
Tinker v. Des Moines School District case, when a student is in 
the cafeteria or on the playing field on the campus during 
authorized hours, he may express his opinions even on 
controversial subjects like the conflict in Vietnam, if he does 
so without materially and substantially disrupting the 
educational process and without colliding with the rights of 
other students.
    This has become the standard doctrine. All student speech 
is accepted which does not interfere with the operation of the 
school and does not violate the rights of other students.
    And if this principle was right, the current trend of 
setting up a free speech zones, or what students call free 
speech pens, is totally antithetical to free speech values. 
Under the First Amendment, the whole country is a free speech 
zone, or at least the public places within it.
    The doctrine of reasonable time, place, and manner 
restrictions presupposes that public places are open for free 
speech to the people and can be regulated reasonably and 
modestly in the interest of sleep hours, preventing scheduling 
conflicts, limiting the decibel level, and so on. But by 
sharply limiting restricting the space and time allotted to 
students and citizens for expression, the free speech zone 
reverses all of the presumptions and makes the exception of 
reasonable regulation at the margins into a rule of censorship 
in most public places. The creation of a tiny free speech zone 
makes the rest of the campus a speech-free zone.
    This is a dangerous trend that, of course, goes beyond 
campus now. In the last several Democratic and Republican 
national conventions, there were free speech zones set up 10 or 
12 blocks away from where the conventions were and where 
delegates were entering and exiting.
    Secondly, and here I echo Congressman Conyers, it is 
implicit in and, indeed, it is integral to the Tinker standard 
that freedom of speech cannot be turned into an effective cover 
for what the Supreme Court called in Davis v. Munroe County 
Board of Education severe, pervasive, and objectively offensive 
harassment of students by other students or other members of 
the community. In that case, the Court determined that Title IX 
is violated by such harassment, which makes it difficult if not 
impossible for the student victims to learn and to thrive.
    Surely, we can all agree that while students and faculty 
can try out whatever theories they want in the classroom, they 
have no right to engage in personal, face-to-face, racial, or 
sexual harassment that is so severe, pervasive, and objectively 
offensive that it undermines and detracts from the victims' 
educational experience and effectively denies them equal access 
to the education available at the school.
    This is an essential point, even if sometimes difficult to 
implement.
    My sense is that the overwhelming number of public 
universities and colleges know the difference between real 
intellectual debate and a relentless campaign of personal 
harassment designed to drive another student to leave the 
school or to commit suicide or something like that.
    For the sake of all of our children who go to college, it 
is important for the schools to recognize the difference. Now, 
there are, of course, some campuses where overly broad and 
vague speech or conduct codes have been used to target students 
simply for unorthodox or radical expression. And it is 
important to understand that a lot of these speech codes are 
left over from the 1960's and 1970's when they were set up to 
target and vilify antiwar protesters and used again in the 
1980's to go after the South Africa divestment antiapartheid 
protesters on campus. Thousands of students were punished and 
disciplined during that period.
    To the extent that these codes are still hanging around and 
are being used in an episodic or idiosyncratic way to go after 
people for speech that others determine to be offensive or 
experience as offensive, then those codes should, indeed, be 
restricted and shut down for that impermissible application, 
and they should be forced to conform to the First Amendment.
    Finally, when it comes to faculty, administrators may not 
treat their academic research and inquiry and speech as 
government speech, which can be regulated by administrators. 
Academic speech, as the Fourth Circuit found in a 2011 case, 
combines whatever public prestige or authority there is in a 
university with the private citizen expression and ideas of the 
professor. And so that has to be protected.
    And finally, let me just say one thing about Ms. Colby's 
testimony, if I could, and the Fox News segment we saw. The 
Supreme Court has ruled on this question in Christian Legal 
Society v. Martinez in 2010, where the Court upheld Hastings' 
so-called all-comers policy. That policy said that any group 
can operate on campus, but if you want to be recognized by the 
university and get money and use official email system, you 
have to be open to all comers, to all students who want to 
join. And the majority on the Court, including Justice Kennedy, 
upheld that policy as being viewpoint neutral, and upheld it as 
promoting academic discourse and free discussion on campus.
    So I think that the alternative position is one that would 
actually lead to more censorship. Imagine if one faction seizes 
hold of the Christian Legal Society and says we don't think 
that Mormons are Christians, and they can't belong here, and 
you sign an oath saying that you believe that Mormonism is 
antithetical to Christianity while the position of saying 
whoever gets there first gets to define the code and the 
constitution of the group would lead to just that kind of race 
into the campus door to seize control of the group and say we 
are the real Christians.
    The way the Supreme Court upheld it is simply to say that 
anybody can join, anybody has the right to participate in the 
democratic dialogue and discussion in elections. I think that 
is libertarian and the democratic approach.
    [The prepared statement of Mr. Raskin follows:]
    
    
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              __________
    Mr. Franks. I think the gentleman.
    I would now recognize our fourth and final witness, Ms. 
Kaminer.
    And make sure that microphone is on, okay?

  TESTIMONY OF WENDY KAMINER, WRITER/LAWYER, AND FREE SPEECH 
                      FEMINIST, BOSTON, MA

    Ms. Kaminer. Thank you for inviting me to testify.
    I am Wendy Kaminer. I am a writer, a lawyer, and a free 
speech feminist. That is not an oxymoron. I have been 
following, participating in, and occasionally provoking free 
speech battles on and off campus for decades.
    While the legality of censorship at public and private 
institutions differs dramatically, the culture of censorship is 
virtually the same. I hope to offer an understanding of that 
culture.
    You have heard, you have seen a few typically extreme 
examples of it. For now, I will simply note that these days 
when students talk about feeling safe, they are often talking 
about feeling protected from what one college campus newspaper 
called being attacked by viewpoints.
    How did opposing viewpoints become so fearful? The impulse 
to censor is a nonpartisan vice, but I will focus on the roots 
of progressive censorship campaigns, which are largely 
responsible for restrictive speech codes on campus and 
Department of Education policies.
    On the left, censorship is an extension of the drive for 
civil rights. It equates words with actions and insists that 
equality requires policing offensive words or micro-
aggressions. Now, new technologies obviously have played a role 
in increasing anxiety about speech, but this essential view of 
pure speech as active discrimination partly reflects the 
confluence of three popular movements that date back some 30 
years, feminist antiporn crusades of the 1980's, late 20th 
century personal development fads, and multiculturalism, which 
accompanied a commendable drive for diversity on campus.
    In the 1980's, law professor Catherine MacKinnon and the 
late writer Andrea Dworkin popularized what became a highly 
influential view of speech as a substantial bar to equality. 
They denied the difference between words and action, framing 
pornography as actual sexual assault and a civil rights 
violation. They persuaded Indianapolis to adopt a model civil 
rights antiporn ordinance, which was soon struck down by the 
Seventh Circuit. So MacKinnon and Dworkin lost that battle, but 
their successors are winning the war. Campus speech codes 
reflect their view of presumptively bad speech as 
discrimination.
    Equating offensive speech with harmful actions was also at 
the center of 1980 personal development movements that focused 
on recovery from verbal abuse and the supposed disease of 
codependency. Pop psychologists declared that virtually all of 
us were victims of child abuse, which was defined very broadly 
to include being chastised occasionally by your parents. 
Consequently, virtually all of us were said to be fragile, 
easily damaged by unwelcome speech. This made censorship seem 
only humane. It made censorship seem a moral necessity as well 
as an essential path to equality.
    These ideas were readily absorbed on campuses concerned 
with diversity. Multiculturalists sought to protect students 
deemed historically disadvantaged from offensive speech. Like 
abuse, discrimination, and even oppression were defined down to 
include feeling offended, demeaned, or insulted by attitudes 
and remarks. Offensiveness, and I think this is really 
important, offensiveness was defined by the unpredictable 
subjective responses of listeners who belonged to protected 
classes.
    So it is not surprising that many students report being 
harassed. The question is what do they mean by being harassed? 
They may mean that they have been offended or attacked by 
viewpoints.
    Campus censorship, like Western European bans on hate 
speech, establishes a right of particular audiences not to be 
offended at the expense of a universal right to speak.
    And what happens is on campus doesn't stay on campus. 
Students graduate. They become faculty, administrators, 
government regulators. Because speech restrictions date back 
decades now, some middle-aged policymakers as well as students 
support and promulgate bans on whatever they deem 
discriminatory speech.
    So as you consider censorship on public campuses, consider 
the possible far-reaching consequences of producing generations 
of potential censors. American constitutional guarantees of 
free speech established in the 20th century may not survive the 
21st. We may go the way of Western Europe in banning whatever 
is considered hateful speech.
    What can Congress do to arrest and perhaps reverse these 
campus trends? It can monitor the Department of Education, 
which seems out of control. The case of Northwestern Professor 
Laura Kipnis, who has been investigated for publishing 
unfashionable opinions about sexual politics on campus, 
exemplifies the department's overreach.
    It can also consider enacting the kind of affirmative 
protections on speech that the Foundation for Individual Rights 
of Education has proposed.
    But perhaps the most important thing for Congress to do 
legislatively is not very much. Don't react to bad speech by 
enacting bad laws that confuse offensive words with 
discriminatory action. Freedom of speech is freedom from 
government interference. It depends on official inaction.
    Now, if I may just as a quick postscript, I would like to 
comment on Professor Raskin's comment on Liberty University. I 
think that in trying to impose First Amendment protections on a 
private religious institution, he is, I suppose, giving them 
First Amendment speech rights at the expense of their First 
Amendment associational rights.
    Thank you.
    [The prepared statement of Ms. Kaminer follows:]
    
    
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                  __________
    Mr. Franks. Thank you all for your testimony.
    We will now proceed under the 5-minute rule of questions. I 
will begin by recognizing myself for 5 minutes.
    Mr. Lukianoff, I guess my first question to you, sir--
incidentally, your testimony is very compelling--how prevalent 
are speech zone policies in our Nation's public universities 
and colleges? For the record, what is the rationale for 
quarantining free speech expression to one specific area on 
campus? What is the legal foundation for it?
    Mr. Lukianoff. We do very extensive research, and the best 
we can tell, it is about one-sixth of universities. We survey 
about 437 universities. We usually prefer the ones that are the 
biggest universities, so that 437 ends up bringing in a lot of 
the biggest schools in the country as well. About one-sixth of 
them have speech zones that we think are, to use an easy way to 
say it, laughably unconstitutional.
    Every time we have challenged them, whether in the court of 
law or just naming them a ``Speech Code of the Month,'' they 
generally drop the zones. But nonetheless, we have been 
fighting these for 15 years.
    Part of the rationale, I am not totally clear on what the 
rationale is. I think Jamie is right, that Professor Raskin is 
right, that these were probably started up in the 1960's as 
what was presumed to be a positive thing, as an additional 
place you could always engage in free speech. And then at some 
point, they became the only place you could engage in free 
speech, thereby quarantining 99.9 percent of campus from 
meaningful speech and protest.
    I think that because of the mass expansion of the 
bureaucracy on college campuses, you end up with administrators 
really, frankly, preferring--and sometimes it is not 
ideological at all. They just want peace and quiet. They don't 
really get the chaotic paradise that our universities are 
supposed to be. They would really rather, if you have something 
to say that is controversial, frankly, it is more convenient if 
you get advance permission.
    Oh, and I should emphasize, in a lot of these cases, they 
are not just free speech zones. They are free speech zones that 
you have to apply 10 days in advance to use, that if you want 
to hand out flyers that might upset somebody, it is better if 
you do it in the corner over there.
    So I think it is partially peace and quiet on campus. I 
think partially it is mass bureaucratization. And I think there 
are people on campus who would rather nobody said anything at 
all, at least nothing near anyone, rather than have anyone 
offended.
    Mr. Franks. Thank you, sir.
    Ms. Kaminer, I found your testimony particularly 
compelling. And I would like to just pose the notion to you, 
are pro-censorship attitudes from campus areas, are they 
spreading beyond campuses? And if so, to what extent and in 
what ways?
    Ms. Kaminer. Absolutely. We have seen a few recent examples 
of it. We saw the reaction of many commentators in the press, 
from Fox News to the New York Times editorial page, to the 
attacks on the draw Mohammed contest that was organized by Pam 
Geller in Texas. A lot of journalists blamed Pamela Geller for 
essentially inciting the violence instead of blaming the people 
who engaged in it.
    Without expressing an opinion on the niceness or the 
integrity or the appropriateness of what Geller was trying to 
do, there is no question that she had an absolute right to do 
it and that we should not hold people who engage in protected 
speech, regardless of how provocative, responsible for violent 
acts committed in reaction to it.
    That is just one obvious example. But I think that if you 
go into the general population, you will hear many people say 
things like, ``I am not in favor of censorship, but free speech 
isn't hate speech.'' That is a very common sentiment. It is 
also somewhat a nonsensical one because, as Congressman Conyers 
said, free speech is supposed to protect unpopular speech, 
speech that some people consider hateful. Otherwise, free 
speech guarantees are completely redundant.
    Mr. Franks. Ms. Colby, I am troubled by the double standard 
that colleges seem to be applying when the fraternities choose 
their leaders and members based on sex or gender, and it occurs 
to me that you made that point very strongly in your comments. 
But then they, of course, refuse to allow religious groups to 
choose their leaders based on religious beliefs.
    I think it is very appropriate for colleges to allow 
fraternities to choose their leaders and members as they have 
always done, but why not allow religious groups to do the same? 
Why the double standard? Again, I am sort of being redundant to 
your comments previously.
    Ms. Colby. Well, I think the reason for the double standard 
is that the fraternities and sororities are a much more 
powerful constituency on and off campus than the religious 
groups are, and so the universities don't tend to want to 
restrict them, but they think they can go ahead with the 
religious groups.
    These exceptions for the fraternities and sororities go to 
Professor Raskin's point about what was actually the holding in 
CLS v. Martinez. In CLS v. Martinez, the Court was very 
specific. It actually went on for about three pages about the 
fact that it was not deciding the issue of whether 
nondiscrimination policies could be used to prohibit religious 
groups from having religious leadership requirements. That is 
an issue that has not been decided by the Supreme Court.
    Instead, what the Court said, what Justice Ginsburg said in 
her opinion was, we are focusing on this very narrow policy 
that Hastings College of Law had, which was that all groups had 
to be open to all comers, but the Court was very clear in its 
holding that universities don't have to have such policies. 
There was even a question of whether they are good policies. 
But furthermore, that if they have an all-comers policy, it has 
to apply to all groups.
    So Hastings College of Law didn't have a problem doing 
that. It had very few student groups compared to your normal 
public university. But any public university that has 
fraternities and sororities really cannot apply an all-comers 
policy.
    So that is why this issue of how nondiscrimination policies 
should be applied to religious groups is very much a live one 
on campuses, because as long as universities have these 
fraternities and sororities, and they create these exceptions 
for them and keep this double standard, they don't have an all-
comers policy and have to treat the religious groups the way 
they treat the fraternities and sororities.
    Mr. Franks. I understand.
    With that, I will now yield to the Ranking Member for 5 
minutes for his questions.
    Mr. Cohen. Thank you, Mr. Chair.
    Ms. Colby, I would like to ask you about your statements 
concerning Vanderbilt University.
    Are you aware of the fact that Vanderbilt requires groups 
to get university approval and use the university name to be 
eligible for university funding and other university benefits 
to simply allow all students to be a member of the 
organization? It doesn't say who can be the head of the 
organization. Anybody can be the head, and if it is the Baptist 
student groups, they can elect a Baptist, they can elect a 
Muslim, they can elect a Presbyterian, they can elect whomever 
they wanted. But they can't not allow somebody to ask for 
membership and to be a member of a university authorized, 
benefited group.
    Is that how you understand the situation at Vanderbilt?
    Ms. Colby. Well, what I understand is that at Vanderbilt, 
they specifically say that they don't allow religious groups to 
have faith requirements for their leaders, and that is their 
policy.
    Mr. Cohen. I believe it may be, and I don't know it for a 
fact, the groups elect the leaders and the groups can elect 
anybody they want. Now, if you have a clause that says you 
can't be the leader unless you think X, then you are putting a 
factor over the election that doesn't make it a democratic 
process because the majority might want to elect somebody who 
doesn't believe in X. And if that is the case, then I guess 
they should change their bylaws. But it simply leaves it up to 
the group the decision of who is going to be the head of the 
group, and the group makes that decision.
    And that is democracy, and that seems like something that 
should be applied in religious groups and nonreligious groups. 
I think there are 13 different religious groups that have gone 
through and abide by it, as have 460 other groups at Vanderbilt 
that are part of the Vanderbilt University extracurricular 
social blah-blah-blah groups.
    Ms. Colby. So another thing that Vanderbilt says is that 
the Democratic club has to allow Republicans to be leaders, if 
they get elected.
    Mr. Cohen. If they get elected, it becomes that.
    Ms. Colby. Then how is it the Democratic club?
    It has always been the practice of groups that deal with 
social or political or philosophical or religious ideas, groups 
that form around ideas have constitutions that say our leaders 
have to agree with our ideas. And that is how the group from 
year to year maintains its identity.
    And so it is just very strange--it is actually an 
elimination of freedom of association for all of these groups 
when you adopt an all-comers policy like Vanderbilt tried to 
do, to say to groups you can't define yourself around beliefs, 
whether they are political beliefs or interests.
    Mr. Cohen. I don't know if they do or don't, but I would 
say this, first what you said about the Democrats, that they 
would make Republicans be a member, if the Republicans outvoted 
them, that happens.
    Let's say Indiana, Mr. Lugar, a great Senator, a fine 
Republican, lost to a tea party guy. My buddy Joe Donnelly is 
now the Senator. That is what happens. The Republicans picked 
the wrong guy. Lugar probably would have won. They picked the 
other guy. Donnelly won. It is democracy.
    If the Republicans infiltrate the Democrats and elect, it 
because the Mugwump Party. But that is part of democracy.
    And as far as Vanderbilt, you picked a bad subject with me. 
I am at Vanderbilt graduate. I was Mr. Commodore at Vanderbilt. 
We are going to win the NCAA baseball championship again. We 
are looking at Illinois on Saturday. Good stuff happening 
there.
    Vanderbilt has long been a citadel of progressive and open 
policies in the South, a leader in universities and other 
institutions in the South, bringing Stokely Carmichael to speak 
in the 1960's when people did not maybe appreciate that, and a 
lot did not. But they brought Stokely Carmichael to speak on 
campus, as did Julian Bond when I was there, and Robert 
Kennedy.
    Vanderbilt has long been a citadel of open thought and 
openness, and that is why the nondiscrimination policy is 
important.
    And I remember the Baptist student union when I was there. 
I didn't go to join the Baptist student union, but I went to 
the Baptist student union some. And if I would have joined and 
they elected me president of the Baptist student union, it 
would have been Kumbaya. That wouldn't have been bad because it 
would have been the decision of the Baptist student union.
    We are all here up in Congress because we were elected by 
our constituents, the ones who showed up and voted. And if it 
so happens that people show up and vote and elect somebody 
else, it doesn't say you have to elect somebody of the same 
faith.
    Ms. Colby. Well, in the past, until 2011, Vanderbilt had 
always allowed religious groups and other political groups and 
other thought groups to define themselves by what their 
thoughts were, and to say, if you are our leader, you have to 
agree with these basic beliefs. And then Vanderbilt, it just 
changed course.
    But I think you put your finger on one of the reasons that 
all-comers policies are particularly a threat to smaller groups 
on campus, because they do then have a problem with maintaining 
their identity if they are a minority group on campus because 
if someone decides that they don't like that group, it is 
becoming too pesky, they don't like the pro-life group's 
position, say, they can go in and change what that group's 
message is for that particular year. And that is really a 
threat to free speech across-the-board.
    Mr. Cohen. All they have to do is give up the right to 
money from Vanderbilt University and the right to use 
Vanderbilt University as a title group. If they want to give 
that up, that is fine. But it is part of society and a part of 
law and a part of life, and it is tough.
    Vanderbilt has not always been perfect. Listen, I was going 
to tell you that, when I went to school there, Jews were not 
allowed in any fraternity. When you went through rush, you were 
told you are going to love being a ZBT or AEPi. Those were the 
Jewish fraternities. It was like you go there. And you went to 
the non-Jewish fraternities sanctioned by the university, and 
they said, oh, you are going to love being a ZBT.
    I hadn't felt that in my life. All of sudden, it was there.
    Now there are no Jews in the ZBT house. They have gone, 
like you said, but it is still ZBT. It is kind of weird, but 
that is the way it is.
    Ms. Colby. And what you are saying is religious 
discrimination, right? There is no reason there should be a 
fraternity that limits its members.
    Mr. Cohen. That was 1969.
    Ms. Colby. But when it comes to a religious group defining 
itself by its religious beliefs, then it is not religious 
discrimination. It is actually religious liberty.
    Mr. Cohen. But they are not discriminating. They are just 
saying, if you are going to be a Vanderbilt University Baptist 
X or Christian X, you have to allow any Vanderbilt student to 
join. And they get to run for office. And if they win, they 
win.
    Ms. Colby. Well, what they are really saying is that every 
Christian group has to be a Unitarian group. They can't really 
have specific creedal requirements. And that is not fair to the 
evangelical Christian groups, who do define themselves by their 
beliefs.
    And also, Vanderbilt always said it was just withholding 
the name and the funds, but recognition brings with it the 
right to free meeting space on campus and access to channels of 
communication, which are essential to a group.
    But I noticed you were a Vanderbilt grad, and I have never 
met better students than the Vanderbilt student body. They are 
incredible students, and I am sure they were when you were 
there, too, but they are incredible now.
    Mr. Cohen. Thank you.
    Mr. Franks. I thank the gentleman.
    I guess sometimes, it occurs to me, that if we allowed the 
Republicans to vote in the Democratic primary, that we might 
nominate some pretty unique people for you. And perhaps, in the 
interest of broad mindedness, if we allowed our friends in 
China to vote in the presidential election, we might come up 
with a different situation here.
    So we have to kind of keep an eye on where we are going 
here, don't we?
    With that, I would now recognize the gentleman from Texas 
for his 5 minutes, Mr. Gohmert.
    Mr. Gohmert. Thank you. I appreciate the 8 minutes I am 
going to get as well.
    I went to Texas A&M, and it was a very conservative public 
university. I was very involved in student activities, 
including the student center that had so many different groups. 
And back then, as conservative as we were, we had no fear of 
inviting very liberal speakers.
    I really enjoyed Ralph Nader, helping host Ralph Nader. I 
didn't agree with him on much, but really enjoyed the 
questions. And he was open to any questions, and he listened to 
us. It was one of the better programs, even though I didn't 
agree with much.
    But, of course, nowadays, since the intellectual elite 
liberals have taken over more of the college campuses, a 
conservative like me is not particularly welcome to come speak 
on college campuses. So times have changed. The liberals, as 
they have taken over, have become perhaps some of the most 
intolerant folks.
    And I appreciate what was just said. It seems that now we 
have devolved to a standard where you can have your religious 
beliefs so long as we agree with them. But if we don't agree 
with them, then you are going to fund all of the groups on 
campus through your fees and your money, and they are going to 
get up and say things about how terrible you are, particularly 
if you are a Christian group, because in this realm of 
political correctness, the only group that it is okay to be 
totally politically intolerant toward are Christians.
    And we had some of this discussion and I pointed out 
someday, when we were talking about hate crime, someday, 
somebody is going to say Christianity is a hateful religion 
because these people believe what Jesus said, that he was the 
way, the truth, and the life, and nobody could go to heaven but 
through him. So, therefore, it is hateful to anybody they are 
saying can't go to heaven except through Jesus.
    And they have totally lost the founding of the country when 
you found a country on democracy that just what a majority 
votes and says will carry the day, then you are ultimately 
going to again devolve into a situation where might makes 
right, and pilgrims will leave this country to go find one 
where once again they won't be discriminated against, which is 
why they came here.
    But when you look at the First Amendment, Congress shall 
make no law respecting an establishment of religion or 
prohibiting the free exercise thereof or abridging the freedom 
of speech or the press or the right of the people to peacefully 
assemble.
    So what we see on some of our college campuses is an 
extreme abridgment of the freedom to assemble. You can assemble 
off campus. We are going to take all your fees. We are going to 
fund these people that hate your guts and think you are crazy 
as Christians. But you have the right to assemble off campus.
    It is so entirely unfair and truly un-American.
    When I look at Thomas Jefferson's comment, it is part of 
the Jefferson Memorial, ``God who gave us life gave us liberty. 
Can the liberties of a nation be secure when we have removed a 
conviction that these liberties are the gift of God? Indeed, I 
tremble for my country when I reflect that God is just, that 
His justice cannot sleep forever.''
    It just seems that, at this point in time, we have been 
overtaken by the thought that we cannot base our beliefs on the 
idea that freedom is a gift from God. But like any gift, it 
requires defense.
    You have FDR on D Day praying for several minutes, ``Help 
us, Almighty God, to rededicate ourselves in renewed faith in 
Thee in this hour of great sacrifice. And, O Lord, give us 
faith. Give us faith in Thee.''
    And people didn't get upset with that. They were okay with 
prayer going to God.
    But as C.S. Lewis said, you know, when he was an atheist, 
agnostic, he loved to chide to Christians, gee, how can there 
be so much injustice and there be a just God? Well, that is 
well and good, but wouldn't it be easier just to say there 
can't be a just God. And then one day he realized he could 
never know what was just, or that there was any injustice, 
unless there was some unwavering, eternal standard of justice 
and injustice. Otherwise, you could never know there was 
injustice, just like a person that has been blind all their 
lives could never know whether there was light or dark.
    Nobody gets it right, as he said. Just because some people 
can't hit the notes doesn't mean the music is not beautiful.
    So anyway, I realize I haven't gotten to a question, but I 
am just quite concerned. And I appreciate actually all of your 
efforts on behalf of free speech, and I look forward to the day 
when we won't hate anybody. We can be like my family was 
growing up. We can fuss. We can argue. But we still love each 
other at the end of the day.
    But thank you for your work. I really appreciate your 
stands for free speech. Thank you.
    Mr. Franks. So true tolerance is not in pretending you have 
no differences. It is being kind and loving to each other like 
family in spite of those differences, right?
    With that, I would now recognize the Ranking Member, Mr. 
Conyers, for 5 minutes.
    Mr. Conyers. Thank you, Mr. Chair.
    I would like each of you, starting with Senator Jamie 
Raskin, to tell me what main thing you have gotten out of this 
open discussion with each other and anything else you would 
like to contribute to your feelings about the hearing itself 
today. Welcome.
    Mr. Raskin. Thank you very much, Congressman, and thank you 
for your passionate advocacy on behalf of freedom of expression 
and civil liberties and civil rights for your whole career.
    I would say, to Congressman Gohmert, I agree very much with 
a lot of what I heard. But when he said that he does not feel 
welcome at a lot of universities or colleges, I want to issue 
an invitation to you right now to come to American University, 
and I think we would benefit a lot from your views, so I hope 
we can----
    Mr. Gohmert. Actually, I have been there and spoken before. 
Thank you.
    Mr. Raskin. Okay, well, you are welcome to come back. You 
have not been banned from campus.
    So, Congressman, I was very interested. I was fascinated by 
the colloquy between Congressman Cohen and Ms. Colby about 
Vanderbilt, having just read the book about my colleague at AU 
Law School, Perry Wallace, who is a great basketball player at 
Vanderbilt and experienced just dreadful, intense racism at 
many different points in his career as the first African-
American basketball player in the conference.
    The specific doctrinal dispute between the two of you was 
over the provision which says the groups have to be open to 
everybody. Obviously, that has a historical context where much 
of the academic civil society life, if you will, at Vanderbilt, 
and many colleges throughout the South and beyond the South and 
the rest of the country, were segregated by race, by religion, 
as you suggest. And the universities, the Supreme Court said in 
the Martinez decision, have an academic freedom interest in 
trying to promote real social interaction.
    And that doesn't mean agreement. It doesn't mean 
ideological conformity, but getting students who come to 
college for the first time, often leaving a community of 
whatever type where they been used to just one set of views or 
one set of people, to have the freedom at least to go check out 
the Republican club if they have always been in a Democratic 
community. Or as you were saying, if you grew up in a Jewish 
community, check out the Baptist group. And you can't be 
excluded at the door, simply because you don't sign a loyalty 
oath on the way in.
    So there is a positive value there in promoting the all-
comers policy. Not every university or college has to do it. 
Ms. Colby is right. The Supreme Court didn't say it is First 
Amendment compulsory. But, certainly, the colleges that want to 
promote a liberal arts integrative experience can go ahead and 
do it.
    Let me say that this goes beyond religion. We are making it 
seem as if it is about religion. It is about politics, too.
    My group could get into the Democratic club before the 
other kids show up or while they are off at bowling night or 
something. And we say if you want to belong to the Democratic 
club, you have to come out against the TPP, or you have to come 
out for the TPP. And if you don't sign on the way in, you are 
no longer a member of the Democratic club.
    The people could get in and take over the Republican club, 
the first people to arrive on campus the day before everybody 
else, and say if you want to belong to the Republican club, you 
have to sign off on the tea party philosophy. And if you don't, 
you don't belong in the Republican club.
    Now you have the university trying to mediate and litigate 
and adjudicate all these disputes between different factions, 
as opposed to what you are suggesting, which is the democratic 
way, which is the doors are open, everybody goes in and you 
participate and democratically elect them.
    If you don't like what the group ends up standing for, you 
have the right not just of voice but of exit, and you go and 
create a new group. I think that is lot more like what civil 
society in a robust pluralistic democratic society is all 
about.
    Mr. Conyers. Thank you. You used up all my time.
    Mr. Cohen. Will the gentleman yield?
    Mr. Conyers. Yes, I will yield to you.
    Mr. Cohen. Thank you.
    I want to thank you for asking Mr. Raskin to respond. He 
did an outstanding job in really capsulizing the issue. And in 
bringing up Perry Wallace, Perry was the first African-American 
to play in the Southeastern Conference at Vanderbilt. He 
integrated the SEC. And the book is a great book. He was my 
view scepter when I went to Vanderbilt, my person to kind of 
lead me and orient me as a freshman.
    But much of the discrimination he got, it was everywhere, 
but a lot of it was from campuses around when he went on road 
games. But it wasn't perfect at Vanderbilt either, but it has 
become much better.
    Thank you, Mr. Conyers.
    Mr. Conyers. You are more than welcome.
    And I want to thank all of the witnesses for making this 
very stimulating.
    And I want to thank especially the Chairman of the 
Subcommittee, because I think we see that, with other 
witnesses, this can continue to grow, in terms of the 
understanding of what goes on, in terms of trying to see and 
appreciate the differences in the kinds of policies that may 
look the same on the surface.
    So I thank all the witnesses.
    Mr. Franks. Well, let me just express the same sentiments 
in return, Mr. Ranking Member.
    And I suppose any people who search for the truth would 
recognize that the surest way to get there is with the free 
exchange of ideas, and we should not be afraid of that. I can't 
express to you what, again, an encouraging hearing this has 
been for me. It gives me hope, and I thank all of you. I know 
that there are some differences in certain areas, but that is 
kind of why we are all here.
    But again, the commonality here this morning for me was 
very encouraging.
    And this concludes today's hearing, and I want to thank all 
of our witnesses for attending and all of our audience for 
attending.
    And without objection, all Members will have 5 legislative 
days to submit additional written questions for the witnesses 
or additional material for the record.
    And again, I thank the witnesses, and I thank the Members 
and the audience.
    And this hearing is adjourned.
    [Whereupon, at 3:45 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

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               Material Submitted for the Hearing Record
               
               
               
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    Note: The Subcommittee did not receive a response from this witness 
at the time this hearing record was finalized on August 18, 2015.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                              

      List of Material Submitted for the Official Hearing Record*
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    *Note: The submitted material is not printed in this hearing record 
but is on file with the Subcommittee and can also be accessed at:

      http://docs.house.gov/meetings/JU/JU10/20150602/103548/
      HHRG-114-JU10-
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      20150602-SD003.pdf.

Written Statement of Hans Bader, Senior Attorney, Competitive 
    Enterprise Institute

Public Comments of Joan Bertin, Executive Director, National Coalition 
    Against Censorship

Public Comment of Henry Reichman, First Vice-President and Chair, 
    Committee on Academic Freedom and Tenure, American Association of 
    University Professors

Letter from Cinnamon McCellen

Letter from Bianca Travis, Chi Alpha, California State University--
    Stanislaus

Letter from E. Scott Martin, National Director, Chi Alpha, U.S.A.

Letter from Ra'sheedah Richardson, Ph.D.

Letter from Justin P. Gunter, Esq.

Letter from Michael Berry

Letter from Ryan Finigan

Letter from Emily Abraham

Letter from Emily Jones

Letter from Justin Ranger

Letter from Jesse Barnum

Letter from Robert S. ``Trey'' Ingram III