This column by ACRU General Counsel Ken Klukowski was published September 27, 2017 by Breitbart.
WASHINGTON, DC — Attorney General Jeff Sessions says that students’ freedom to express conservative ideas on public university campuses is a civil rights issue, and the Justice Department has a duty to protect civil rights, including taking action against government officials who violate them.
Appearing on Fox and Friends Wednesday, Sessions followed up on his Tuesday event at Georgetown’s law school, where he spoke about free speech on campuses.
It is no secret that universities are bastions of left-of-center thought. The current controversy is not whether there is liberal bias on college campuses, but rather the degree to which conservatives are censored, stifled, or even punished for expressing their personal beliefs. Liberal politics and priorities are favored at most universities, and conservative ones are disfavored.
This lack of balance is one thing at private universities, which have their own First Amendment rights to support a particular viewpoint. Moreover, that same First Amendment does not give any students or guest speakers any rights against those private schools because the Constitution does not require private corporations to protect free speech.
It is entirely another thing at public universities, which are by definition part of the government. As such, they are completely bound by the Bill of Rights, including the Free Speech Clause of the First Amendment, which forbids discriminating against private speakers on the basis of their viewpoint or identity. The Constitution commands instead that the government — including a public university, which is a state entity — must take action to protect free speech and divergent opinions.
“This is a civil rights issue,” Sessions explained to his hosts on Fox News Channel, referring to the rights of students at public universities. “The Department of Justice has a duty to protect civil rights.”
The attorney general also addressed the current political climate on college campuses. “There is a clear bias” against conservative speech on college campuses, Sessions explained.
Then came a shot across the bow: The Justice Department will treat conservatives’ free speech rights on public campuses just like any other civil rights issue, including being ready to intervene — with legal action if necessary — to protect students who are being penalized solely for expressing viewpoints with which a liberal faculty or college administration may disagree.
Sessions also explained why this is different from the NFL controversy. Football teams are private entities, and as such, the First Amendment does not force them to do anything, just like private universities. They can choose to support free speech, but the Constitution does not force them to do so.
He said that he fully supports President Donald Trump on this issue, that on a personal level both men believe that players should show respect to the American flag and national anthem as a show of unity and to honor the military service members who have made the ultimate sacrifice fighting for what the flag stands for.
But all that is between private-citizen football players and the private companies that employ them. The Constitution allows private team owners to take a particular viewpoint on such an issue and require all their employees to support that private policy as a condition of continued employment. Just like a pro-abortion organization could fire an employee for publicly expressing a pro-life viewpoint, or the National Rifle Association could fire an employee who publicly embraced gun control.
However, as part of the government, public universities cannot take sides. The Constitution gives students First Amendment rights against the government that football players do not have against their private employers, and the Justice Department is required by law to protect the civil rights of those students.