SILENCE IN THE SOUTH? We Don't Have To Obey State's Free Speech Law, University Says
Part 3 of 4: University of Alabama System tells high court that Campus Free Speech Act "interferes" and "infringes" on their "autonomy"
(This is part three of a four-part series, “Silence in the South?” covering the Young Americans for Liberty v. the University of Alabama System. Here’s parts one and two.)
The Alabama Supreme Court has a very simple question to answer:
Are the areas on the University of Alabama in Huntsville’s campus set aside for “spontaneous activities of expression,” as described in the school policy, the same as areas on campus that are “designated for the purpose of engaging in a protected expressive activity,” which are banned by state law?
But even if the court’s answer is “yes,” and those areas are indeed free speech zones that violate the Campus Free Speech Act, the University of Alabama System has an interesting back-up argument:
They don’t believe they actually have to obey the act at all.
“According to the Alabama constitution, the university ‘shall be under the management and control of a board of trustees,’” write the university’s attorneys in a brief filed with the high court. They argue the board has “constitutional autonomy” and that having the state legislature and governor tell them how to oversee free speech on campus “improperly interferes” with the board’s authority.
Just in case you missed that, here we have the board of a public school system telling the taxpayers, through their elected representatives, to stay out of their business.
How has that attitude gone over recently?
The citizens of this state have a right, and their state representatives have a duty, to ensure that our public institutions of higher learning are operating in a way that’s consistent with their purpose. The people of Alabama founded, funded, and then supported this school system for over two hundred years, pouring untold billions of dollars into its coffers along the way.
Just this year alone, Alabama taxpayers sent $582 million to the University of Alabama System and will send another $629 million next year, according to state budget records.
So, the state taxes the people for $1.2 billion in just two years alone to fund this university system, but their elected representatives have absolutely no say in how it operates?
Come on.
The university also takes the position of claiming strategic-level guidance coming from the State House about not having free speech zones is like having lawmakers chair their academic departments.
“This law is tantamount to the legislature mandating who can teach classes, which classes can be taught, where they can be taught, when they can be taught, and what subjects can be covered in those classes,” university lawyers write.
And that ridiculous argument is tantamount to complaining that a posted speed limit is also telling people what kind of car they can drive, where they can drive it, when they can drive it, and what color it can be.
No, a speed limit is just telling them not to go over a certain speed. Drive whatever car you want.
Same with the Campus Free Speech Law. Don’t restrict freedom of speech. Teach however you want.
We didn’t elect our lawmakers to decide who should be hired to teach English 101 in Tuscaloosa. That’s obviously the board’s job, to further delegate as it sees fit.
However, we did elect our lawmakers to ensure that our rights are protected, anywhere and everywhere, to include the campus of a public university. That’s their job, and that’s what they were doing when they drafted and passed the Campus Free Speech Act.
Alabama Attorney General Steve Marshall also filed a brief with the high court defending the act’s constitutionality. He believes that while the constitution details who manages and controls the university system, the state legislature still “retains significant authority regarding how the board must do so.”
This is pretty much how the executive and legislative branches of government operate, he explained.
“Just as the legislature does not violate the separation of powers every time it passes a law requiring or forbidding certain actions by the governor, it does not violate (the state constitution) simply by requiring or forbidding certain actions by public universities.”
After reading both briefs, it’s quite clear that each side has different definitions, even different broad understandings, of the phrase “management and control.”
University lawyers write that the system doesn’t believe its constitutional autonomy means that its board “somehow has free reign to break the law whenever it chooses,” only to break those that are solely written to govern the school.
“The university does not argue that … (the state) constitution exempts it from generally applicable state law,” they write in the brief. “Instead, the university argues that the (Campus Free Speech Act), which is specifically directed only to universities in the state, improperly interferes with the board’s power to manage and control the university.”
Along with the terms “management” and “control,” there also appears to be some confusion over the concept of oversight. University lawyers called the attorney general’s argument of “who” manages the university being different from “how” it’s managed, “nonsensical.”
“If the legislature can tell the board how to manage the university, then it is the legislature that is ultimately managing and controlling the university,” they argue.
Well … yeah. As the people’s elected representatives to our government, ultimately, they are.
The second sentence of the state’s constitution makes that plain by stating that “all political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.”
The University of Alabama System isn’t a hermetically sealed outpost of self oversight and self accountability. It is mostly, if not nearly entirely, left alone (besides having to count all that money we send it each year).
But when we see something deeply wrong on campus that threatens our society — and the nationwide movement against free speech that began on college campuses is indeed one such threat — you can bet our elected representatives are going to act on behalf of the people.
In the end, if the Alabama Supreme Court thinks the university does indeed report to itself, then we should sincerely thank its lawyers for pointing out that absurdity.
And then launch an effort to amend the state constitution.
Coming in Part 4 of 4: This is just college, a nearly make-believe land far from the real world of work and taxes and parenting and a host of other responsibilities that many of these students don’t yet have, so why is free speech on their little campus such a big deal?
(J. Pepper Bryars is Alabama’s only reader-supported conservative journalist. You can support his writing by subscribing at https://jpepper.substack.com/subscribe.)
amend the constitution, and possibly do something with the funding. The Board of Trustees should be totally replaced. they have gone off the rails.