American Council on Education and 38 other higher ed groups in Supreme Court affirmative action case: On second thought, the chilling effect on speech is a real thing and it’s bad!

Yiddish has to be one of the more fun languages out there, and when seeing arguments from colleges I am often reminded of the classic definition of chutzpah: “that quality enshrined in a man who, having killed his mother and father, throws himself on the mercy of the court because he is an orphan.”

That’s the only possible way to evaluate the arguments about chilling effects on free speech made in an amicus brief submitted by the “American Council on Education and 38 Other Higher Education Associations” in Students for Fair Admissions Inc. v. President and Fellows of Harvard College, the case on affirmative action heard yesterday at the Supreme Court. 

FIRE, of course, takes no position on affirmative action. But we certainly do take a position on free speech on college campuses. For more than two decades, we have fought with countless colleges over the chilling effect their policies create among students and faculty — who are often left with little ability or willingness to speak out. Accordingly, searching Google for the words “chilling effect” on FIRE’s website returns about 1,200 entries. 

And colleges push back relentlessly, repeatedly insisting to courts that their actions do not discourage anyone from speaking out on campus. Take just one of the most obnoxious examples, the FIRE case of Abbott v. Pastides, where FIRE sued on behalf of two University of South Carolina students who suffered through a month-long investigation for holding a free speech event on campus after other students complained that the event was “offensive” and “triggering.” 

You’d think this would be pretty darn chilling, but the U.S. Court of Appeals for the Fourth Circuit dismissed the case. 

When it comes to arguments over the chilling effect, colleges have already killed their parents. Whatever reasoning the Supreme Court adopts in this case, it shouldn’t be fooled into treating them like orphans.

“The Fourth Circuit’s decision held that USC’s investigation did not violate the students’ First Amendment rights, and that they lacked standing to challenge the policy under which they were investigated,” FIRE reported at the time. “Taking a ‘no harm, no foul’ approach, the court reasoned that the university’s investigation of the complaints was appropriate — even though the court acknowledged the probe did chill the student groups’ speech until the investigation was ultimately dropped — and that a student of ‘ordinary firmness’ would not be deterred from holding similar events in the future.”

Ok, got it. USC believes that a month-long investigation into students for holding a free speech event — done because some people called it “triggering” — would not chill a student of “ordinary firmness” from going ahead and holding more such events. What kind of overly-sensitive student would be nervous about that prospect? The Fourth Circuit even agrees! No chilling effect here, no sir.

Well, here comes the chutzpah.

In its amicus brief before the Supreme Court, the American Council on Education, the nation’s primary higher ed lobbying group — of which the University of South Carolina has been a member for 98 years — argues (with emphasis added) that banning affirmative action will chill the speech of college applicants — and hey! The First Amendment doesn’t allow that:

Knowing that experiences tied to race or ethnicity will be categorically disregarded, it seems inevitable that applicants would avoid writing about meaningful experiences that relate to their racial and ethnic identities. For those who do not self-censor, colleges and universities would have to direct admissions readers to ignore how a student’s racial or ethnic identity contributed to their experiences or framed their achievements, in the admissions decision. This all stands to chill applicant expression and impede the exercise of academic discretion. See Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 835 (1995) (the “danger . . . to speech from the chilling of individual thought and expression . . . is especially real in the University setting, where the State acts against a background and tradition of thought and experiment”).

Let’s leave aside ACE’s questionable contention that if affirmative action were banned, “experiences tied to race or ethnicity will be categorically disregarded.” Its argument here, along with that of 38 other higher education organizations, is that banning affirmative action would cause college applicants to be less likely to talk about “meaningful experiences that relate to their racial and ethnic identities” if they realize that relating those experiences might not move the needle at admissions time, and that this would chill their speech in violation of the First Amendment.

These two arguments, made by or on behalf of the same people, cannot both be true. 

Yet, at the same time, the University of South Carolina, an ACE member, went to the mat in court, on South Carolina taxpayers’ dime, to argue that actually investigating current students for having a free speech event wouldn’t discourage them from having further free speech events. And the same goes (albeit, sometimes to a lesser extent) for every other school with which FIRE has argued about the chilling effects of its policies, because the 38 other organizations that signed on to the amicus brief include just about every college in the nation as members.

These two arguments, made by or on behalf of the same people, cannot both be true. 

It takes a whole lot of chutzpah to make this chilling effect argument before the Supreme Court after defending decades of speech codes, investigations, bias response teams, and repeated misuse of harassment and DEI policies, all of which are specifically intended to send the message to students and faculty members that they’d better think twice about expressing any messages that go against university policy. 

When it comes to arguments over the chilling effect, colleges have already killed their parents. Whatever reasoning the Supreme Court adopts in this case, it shouldn’t be fooled into treating them like orphans.

Robert Shibley is a FIRE Senior Fellow and is Of Counsel at the law firm of Allen Harris PLLC.