The views aired at Pitt debate were ugly. It was still right to let it happen | Bruce Ledewitz

A university is exactly the place where such explorations must take place if America is to remain a free society

April 20, 2023 6:30 am

(Photo via Pittsburgh City Paper)

We live in a time when university administrators do not dare to admit they are doing the right thing. Instead, they hide behind the law, in this case the First Amendment, when it really does not apply.

That happened Tuesday at the University of Pittsburgh, which was the site of a controversial debate on transgender rights, hosted by the the Pitt chapter of College Republicans.

One of the speakers, Daily Wire commentator Michael Knowles, on March 4, told the Conservative Political Action Conference that “transgenderism must be eradicated from public life entirely.”

Knowles has claimed he was referring to an ideology and not individual people. On Tuesday, he argued that the government must either embrace transgender identity, “which is to deny the natural distinction between men and women,” or to “restore” the binary understanding of sex, WESA-FM reported.

Knowles’ opponent, libertarian journalist Brad Polumbo, argued that regulating “transgenderism,” is un-American and “remarkably short-sighted” for conservatives, who claim to support smaller government, the station reported.

The announced appearances of these speakers provoked intense opposition. Some 11,000 signatures were gathered, calling upon the Pitt administration to cancel the events. Students protested outside the event, shutting down streets in the city’s Oakland neighborhood, according to the Tribune-Review.

University officials issued statements acknowledging that “these events are toxic and hurtful for many people in our University community” but emphasizing that “student organizations are permitted to invite speakers to campus without University administration deciding what is acceptable and what is not.”

Although Pitt aims to cultivate “an environment of mutual respect, concern for others, diversity, inclusion, and belonging,”…“as a public university, we also uphold the principles of protected speech and expression.”

These statements gave the false impression that Pitt was legally unable to cancel these events even if the university found the views of the speakers reprehensible.

That was never the case. 

It is true that the speech involved is protected by the First Amendment. But that just means the government cannot arrest and prosecute the speakers for what they are saying.

Universities, even public universities, have never been bound by the First Amendment in that way. Pitt is entitled to ban from its campus any speaker whose message violates its core principles.

And the Pitt administration must have known this to be true. If Knowles had been expressly calling upon his followers to harass transgender-students at Pitt until such students were forced to leave the university, his message would still be protected by the First Amendment. But I am certain the university administration in that case would have canceled his talk.

And the same thing would be true of a speaker who denied the Holocaust, or used racial slurs or advocated any form of violence.

The difference between the government as prosecutor and a public university is why public universities are permitted to enact codes of conduct that require students to behave civilly toward one another and can discipline students, even expel them, if they fail to do so. 

Incivility is actually protected by the First Amendment. But public universities are not obligated to tolerate it.

In terms of speakers on campus, even when invited by student groups, these requirements of civility are an implied limit on the autonomy that such student groups possess. It is very unlikely that any court would hold to the contrary if Pitt had acted.

So, yes, Pitt could have banned these speakers without violating the First Amendment.

Nevertheless, the administration was right not to do so.

What Pitt did in allowing the speakers is far more important than merely upholding the law of the Constitution. Pitt permitted these speakers to speak because the rights of transgender persons is an important public issue in America today. Millions of Americans have very strong feelings on both sides of this issue. 

Transgender Americans have always been among us. I remember reading in the Pittsburgh Jewish Chronicle about accommodations that the Jewish Center made to transgender persons in the 1950’s.

But never before have the rights of transgender persons been asserted so openly. This has led to an intense backlash among some segments of the public. Discussion and debate are needed at this point for an informed consensus to emerge.

In particular, the terms of medical treatment for young people, and their right to privacy, must be discussed openly and fully. 

A university is exactly the place where such explorations must take place if America is to remain a free society. Such discussions should not be banished or suppressed.

And this is so even though some of the views expressed were experienced as deeply harmful to many students. 

So, not only did Pitt do the right thing in allowing these speakers to speak, it did a difficult thing.

Why then did the Pitt administration not boldly announce this policy? Why did the university statement not acknowledge Pitt’s authority to cancel these events and then take full responsibility for allowing them to go forward? Why did the administration pretend that it was powerless to intervene?

Students at Pitt should have been told the truth. The university statement should have been written as follows: Pitt deems the debate about transgenderism to be a valid one. While the university has itself already taken a position in this debate, and greatly values transgender students on campus, we recognize that this is not the case for the public as a whole. The university wants to encourage this debate to go forward, with respect and civility. And we want that to happen here.

This is what it means to be an institution of higher learning in a free society.

It might even turn out that students who oppose these speakers would come to understand the administration’s position.

Instead, by proclaiming its powerlessness to act, Pitt lost a wonderful teaching opportunity. Instead of grudgingly yielding to the exchange of ideas, Pitt should have welcomed it.

Pitt could even have said that it has faith in the truth of its commitment to transgender rights and does not fear any criticism that a speaker might make.

This is one of those moments when free speech is not a matter of law but a matter of culture. And if we are to keep it, we must not treat free speech as something forced on us. We must instead treat free speech as what it is—the highest privilege. 

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Bruce Ledewitz
Bruce Ledewitz

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne Kline Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. He hosts the “Bends Toward Justice” podcast. His latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Kline Duquesne Law School.