Representatives John Johnson, Katy Hall and Karianne Lisonbee, recently wrote an op-ed titled, “No one wants to ban open discussion of words at Utah universities.” Weber State University’s decision to circulate a list of “prohibited words and concepts” to an invited speaker, causing the speaker to withdraw, was the impetus for the piece. This came mere weeks after Weber State made national news for canceling a “Unity Conference,” on the impression that HB261 precluded academic programs from talking about “discriminatory practices.”
These miscalculations appear to have been good-faith, but misadvised and overly cautious attempts to comply with Utah law. However well-intended, these attempts directly conflicted with constitutionally granted freedom.
Weber State is a governmental entity and is therefore bound by the First Amendment’s guarantee of freedom of expression. In contrast to a private institution of higher education (or any other private entity for that matter), which may purport to create an environment of free expression as an ideal, but is under no constitutional requirement to do so, Weber State cannot regulate speech based on its content. Or, as the Supreme Court put it, the government (or governmental entities like Weber State) “has no power to restrict expression because of its message, its ideas, its subject matter or its content.”
With Weber State ready to begin a presidential search, an opportunity exists to learn from past mistakes and recommit to safeguarding free expression.
That begins with a better understanding of what HB261 actually requires, particularly with respect to its requirements related to institutional neutrality. HB261 codifies at least part of the Utah Board of Higher Education’s (UBHE) 2024 guidance to all institutions within the Utah System of Higher Education, requiring that institutions “refrain from taking positions on social and political issues to allow students, staff, and faculty members to speak out robustly and candidly, resulting in educational environments in which a large spectrum of thoughts, opinions, and ideas can be explored and flourish.”
In 2024, I wrote in support of this directive and walked through the history of and justification for institutional neutrality, a concept conceived at the University of Chicago in the late 1960s, and articulated in what became known as the Kalven Report. The foundational premise of institutional neutrality is that the university is not the voice of expression, but the forum for it. The voice — or as the Kalven Report puts it, the “instrument of dissent and criticism” — is the faculty members, staff and students of the university. This only occurs, however, when the university encourages “the widest diversity of views within its own community.”
With the selection of a new president, Weber State can show how a weakness can become a strength; to not only follow Utah law and UBHE’s requirements with respect to institutional neutrality, but as a top-down matter, create an environment in which free expression is culturally encouraged and protected.
To meet this aim, the presidential search committee should scrutinize each candidate’s record on the question of protecting speech. Direct questions regarding each candidate’s commitment to and plans for protecting speech should be posed in the interview process. Make no mistake: This is hard and can be complicated work. For example, can a university disinvite a controversial speaker because the costs associated with adequately securing the event are inordinately high? It requires much more than lip-service. A checkered or waffling record on this front should significantly diminish a candidate’s prospects.
Furthermore, members of the search committee would do well to familiarize themselves with the Heterodox Academy (HxA), whose president, John Tomasi, recently wrote, applauding efforts across the nation’s campuses towards civic dialogue, but warning that if these measures are not accompanied by viewpoint diversity (a much more difficult feat to achieve), then “we will end up with campuses that speak more softly, listen more carefully, but nonetheless continue, together, to think the same thoughts.”
HxA offers a four-point agenda for reforming colleges and universities: 1) Commit to open inquiry; 2) Unleash the free exchange of ideas; 3) Insist on viewpoint diversity; and 4) Invest in constructive disagreement.
The extent to which Weber State’s next president is committed to these ideals will determine whether Weber State can truly convert a recent history of inadequacy into an exemplary future.
(Eric Smith) Eric Smith is a professor and master of taxation program director in the Goddard School of Business & Economics at Weber State University. He is also an adjunct professor of law in the S.J. Quinney College of Law at the University of Utah.
Eric Smith is a professor and master of taxation program director in the Goddard School of Business & Economics at Weber State University. He is also an adjunct professor of law in the S.J. Quinney College of Law at the University of Utah. These views are his own.
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