U.S. GOVERNMENT PUBLISHING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Publishing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

94–808 PDF 2015

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 

Printed for the use of the Committee on the Judiciary 

( 

Available via the World Wide Web: http://judiciary.house.gov 
(II) 

COMMITTEE ON THE JUDICIARY 

BOB GOODLATTE, Virginia, Chairman 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

LAMAR S. SMITH, Texas 

STEVE CHABOT, Ohio 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM MARINO, Pennsylvania 

TREY GOWDY, South Carolina 

RAU ́ L LABRADOR, Idaho 

BLAKE FARENTHOLD, Texas 

DOUG COLLINS, Georgia 

RON DeSANTIS, Florida 

MIMI WALTERS, California 

KEN BUCK, Colorado 

JOHN RATCLIFFE, Texas 

DAVE TROTT, Michigan 

MIKE BISHOP, Michigan 

JOHN CONYERS, JR., Michigan 

JERROLD NADLER, New York 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO R. PIERLUISI, Puerto Rico 

JUDY CHU, California 

TED DEUTCH, Florida 

LUIS V. GUTIERREZ, Illinois 

KAREN BASS, California 

CEDRIC RICHMOND, Louisiana 

SUZAN DelBENE, Washington 

HAKEEM JEFFRIES, New York 

DAVID N. CICILLINE, Rhode Island 

SCOTT PETERS, California 

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 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

STEVE COHEN, Tennessee 

JERROLD NADLER, New York 

TED DEUTCH, Florida 

PAUL B. TAYLOR, Chief Counsel 

JAMES J. PARK, Minority Counsel 
(III) 

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 

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 

(1) 

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. 
2 

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. 
3 

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 
4 

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. 
5 

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 prolife 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.’’ 
6 

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 com-
7 

pliance 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 Foun-
8 

dation 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:] 
9 
10 
11 
12 
13 
14 
15 
16 
17 
18 
19 
20 

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, unfor-
21 

*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-WstateLukianoffG-20150602.pdf. 

tunately, 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:]* 
22 
23 
24 
25 
26 
27 
28 
29 
30 
31 
32 
33 
34 
35 
36 
37 
38 
39 

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 
40 

**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-WstateColbyK-20150602.pdf. 

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:]** 
41 
42 
43 
44 
45 
46 
47 
48 
49 
50 
51 
52 
53 
54 
55 
56 
57 
58 
59 

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 
60 

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 
61 

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 allcomers 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:] 
62 
63 
64 
65 
66 

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 
67 

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:] 
68 
69 
70 
71 
72 
73 
74 
75 
76 

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 in-
77 

citing 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 
78 

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. 
79 

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 allcomers 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 
80 

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. 
81 

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 
82 

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, 
83 

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. 
84 

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.] 
(85) 

A P P E N D I X 

MATERIAL SUBMITTED FOR THE HEARING RECORD
86 
87 
88 

f 
89 

———— 

Note: The Subcommittee did not receive a response from this witness at the time this hearing 

record was finalized on August 18, 2015. 
90 
91 
92 
93 
94 

f 
95 

*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- 

20150602-SD003.pdf. 

List of Material Submitted for the Official Hearing Record* 

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 

Æ