Unlawful Speech Codes Thrive at Schools Nationwide

FIRE.org | Dec. 6, 2007

The Foundation for Individual Rights in Education (FIRE) released its 2007 report on campus speech codes, revealing that American colleges and universities are teeming with restrictions on students’ freedom of expression.

For the report, Spotlight on Speech Codes 2007: The State of Free Speech on Our Nation’s Campuses, FIRE reviewed policies at 346 American colleges and universities and found that 75 percent of schools surveyed maintain policies that clearly restrict speech that—outside the borders of campus—is protected by the First Amendment to the U.S. Constitution.

“With increased resources and enhanced research techniques, FIRE was able to unearth even more of these unlawful and pervasive policies than those included in last year’s report,” FIRE President Greg Lukianoff said. “The 2007 report confirms that speech codes are still infecting college campuses, and the public needs to be aware of these dangerous violations of students’ right to engage in free and open expression.”

FIRE’s report is the most comprehensive effort to date to both quantify the number of colleges and universities that restrict free speech and assess the severity of those restrictions. The report surveyed publicly available policies at the 100 “Best National Universities” and at the 50 “Best Liberal Arts Colleges,” as rated in the August 28, 2006, “America’s Best Colleges” issue of U.S. News & World Report, as well as at an additional 196 major public universities. The research was conducted between September 2006 and September 2007.

[...]

The report’s findings include:
– Public colleges and universities are disregarding their constitutional obligations. A staggering 79 percent of public universities surveyed maintain unconstitutional speech codes, despite decades of federal court decisions striking down similar or identical policies.

– Most private colleges and universities promise free speech, but they usually do not deliver. Unlike public universities, private universities are not legally bound by the First Amendment. However, most of them explicitly promise free speech rights to their students and faculty. For example, Tufts University promises it is “an open campus committed to the free exchange of ideas,” but it found student journalists guilty of harassment simply for publishing a satirical Christmas carol and a factually verifiable criticism of radical Islam that some members of the campus community found offensive.

Highlights of FIRE’s research from the 2006-2007 academic year include:
– Northeastern University in Boston prohibits students from using the university’s network to “[t]ransmit or make accessible material, which in the sole judgment of the University is offensive….”

– Florida Gulf Coast University prohibits “expressions deemed inappropriate.”

– At The Ohio State University, students in the residence halls are instructed: “Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc.”

. . . more

Comments

  1. The totalitarian impulses and disregard for the US Constitution by the American left is evidenced yet again by this daming report. While the left screams bloody murder when foreign terrorists, captured in combat, outside the US, are interviewed without being Mirandized, they are more than ok stiffling free speech in American colleges and universities.

  2. At The Ohio State University, students in the residence halls are instructed: “Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc.”

    I’m not a supporter of speech codes at universities, and I’m of the opinion that, in a perfect world, everyone should be able to make fun of everyone else, equally.

    That said, I’m curious what type of language would be appropriate for a school which has an obligation to protect students in its residence halls from harassment. I can think of lots of examples of spoken behavior that I’d consider beyond the pale (should I Jewish student be forced to put up with floormates who repeatedly call him a “%^&# kike?” Should a female–or any student–have any recourse if her trip up the stairs to her living quarters is accompanied every day by men talking about the nature and size of parts of her body?)

    I can see why FIRE would single out the Ohio State University residence hall language, but I’m not certain what aspect of it troubles them in particular. The previous two examples are especially vague, so perhaps it’s the “etc.” to which FIRE is opposed?

    I’m curious what kind of wording would be appropriate for a residence hall policy against harassment. Is it the opinion of the Orthodox readers and others on this board that no college should have any written policy regarding the way students who reside on campus treat each other?

  3. Phil, It may come as a surprise to you but the right not to be offended is NOT in the US Constitution. The right not to be offended is also NOT in the Bill of Rights. Free Speech is constitutionally protected as long as it is not obscene or incites others to violence.

    And to answer your question: Is it the opinion of the Orthodox readers and others on this board that no college should have any written policy regarding the way students who reside on campus treat each other?

    Yes, colleges should not have any written policies about speech. The US Constitution applies like it does across the entire country and it alone delineates the protections of speech we enjoy. Universities are not qualified or empowered to change our Constitution. They are also not supposed to be politically correct, re-education camps or brainwashing centers.

  4. Hey Banescu,

    I feel like the discussion quickly descended into soundbyte talking-points.

    I didn’t suggest that there’s a right “not to be offended” in the U.S. Constitution, and I certainly don’t support blanket restrictions on free speech. I don’t think that colleges have any business, generally, regulating the oral or written communication that their students engage in during their daily lives, except perhaps to grade their assignments and written work. I’m opposed to the vast majority of the speech codes that FIRE brings up, be they leftist or rightist in their wordings.

    That said, colleges have a responsibility to serve as places of learning, and also as living quarters for their residents. The free speech rights guaranteed by the Constitution are not absolute, and courts have upheld that exceptions can be made if they apply to everyone. For example, the time, place and manner of communication may be restricted if there’s a compelling reason to do so.

    Now, a little casuistry. Let’s envision a female student who returns to her dorm each day from class, where she faces a phalanx of male students outside of the door to her room. Without touching her, each day they scream, “Show us your [female body parts], you fat [expletive] Mormon bitch!”

    Now, if we’re talking about that specific example, is it your contention, Banescu, that colleges have absolutely zero rights to draft policies prohibiting such behavior?

    Additionally, do you maintain that a policy proscribing such behavior would be an example of “politically correct re-education?”

  5. Phil, regarding the extreme example you have provided, of course the conduct is offensive, demeaning, and disgusting. But is it a violation of the US Constitution, no. Also, they could easily qualify as “fighting words” which would allow the university to prevent such incidents. Finally, that kind of conduct can easily be prevented via a conduct code. Universities can regulate conduct, but not speech unless it fits the very narrow exceptions carved out by the Supreme Court.

    The reasons for such careful treatment of free speech were summarized by the UWM Post federal court:

    “This commitment to free expression must be unwavering, because there exist many situations where, in the short run, it appears advantageous to limit speech to solve pressing social problems, such as discriminatory harassment. If a balancing approach is applied, these pressing and tangible short run concerns are likely to outweigh the more amorphous and long run benefits of free speech. However, the suppression of speech, even where the speech’s content appears to have little value and great costs, amounts to governmental thought control.”

  6. Phil, Here’s a link to FIRE’s list of detailed resources that will address your concerns and hypotheticals: http://www.thefire.org/index.php/article/5063.html

    FIRE’s Guide to Free Speech on Campus focuses on the threat to freedom of expression posed by the imposition of speech codes, under various misleading names, on campuses across the nation. This Guide identifies the most effective arguments against such codes on private, public, and sectarian campuses, and demonstrates how the mere application of rules of legal equality go a long way to reforming current abuses. Here students will find the vocabulary with which to combat oppressive codes, regulations, and censorship and the answers to such difficult questions as:

    1. How can I wage a successful campaign against speech codes at my school?

    2. How do I respond to the claim that colleges and universities must by law adopt policies that restrict speech in the name of combating “sexual harassment,” “racial harassment,” and other forms of allegedly unlawful discriminatory conduct?

    3. What are the modern history and current status of the United States Supreme Court’s view of the nature and scope of the First Amendment’s protection of free speech and academic freedom, especially as this concept pertains to college and university campuses?

    4. What is the modern history and current status of the United States Supreme Court’s view of the nature and scope of academic freedom?

    Hope this helps address the issues you raised. Many of the attorneys that work for the FIRE are Constitutional law experts. Their detailed, comprehensive, and well-resoned analysis should provide you with the answers you seek.

  7. But is it a violation of the US Constitution, no.

    I think I’m misunderstanding you…the US Constitution delineates powers which are reserved for the states and for Congress, and restricts the making of laws, but it doesn’t pertain to specific individual behaviors. I think what you’re saying is that the behavior I mentioned doesn’t merit violating the Constitution…?

    Also, they could easily qualify as “fighting words” which would allow the university to prevent such incidents. Finally, that kind of conduct can easily be prevented via a conduct code. Universities can regulate conduct, but not speech unless it fits the very narrow exceptions carved out by the Supreme Court.

    I think we’re in agreement, just coming at it from different angles. If speech can be defined as conduct to prevent instances like the example I mentioned, that’s one way to look at it. I’d also consider it a reasonable (carved out by the Supreme Court) restriction of the place of communication if a school prohibited such speech in the residence hall where a student lives, provided the speech was permitted elsewhere. The proximity to a student’s residence might also be considered threatening (hence, “fighting words.”)

    I looked through FIRE’s old cases, and I can’t find a lot of fault with them; I think more free-speech advocates like them should support civil rights.

    I think the reason the example I mentioned stood out to me is because it deals with the residence halls inside a university, and the residence halls have multiple functions. It would be ludicrous to suggest that all speech, at all times, must be permitted in every case on a college campus. A Calculus teacher may rightly silence students who speak out of turn (perhaps that’s conduct, not speech) and an interpersonal communication teacher might establish that, as an experiment, the class will not mention gender, sex, or race for the duration of the time block. (If it’s appropriate for the course, or for a project within the course, then the function of the class supercedes the right to free speech within those particular paramaters.)

    It’s an interesting dilemma. FIRE’s Guide to Free Speech on Campus has two quotes that I’m still curious about:

    No one denies that a university can and should ban true harassment or threats

    and

    [...]this use of a sexual harassment
    rationale not only conflicted with the actual law, but also
    trivialized the real offense of sexual harassment

    In separating harassment from threats, and in referring to “real” sexual harassment, they acknowledge that the concept of harassment exists. I guess the minefield for a college or university is drawing a bright line which defines such harassment, eh?

    FIRE also takes a strong stance against compelled speech. Did the publish anything about the Pledge of Allegiance case a few years back? It seems right up their alley.

  8. Other than religious schools, the place with the greatest restriction on speech is the workplace, where a negative comment at the water cooler about the boss’s new necktie can be grounds for termination.

    But many of these restrictions on workplace speech actually come from federal and state civil rights law prohibiting the creation of a “hostile environment” in the workplace. Thus, however great the artistic and free speech value of the latest Penthouse magazine pinup, you can’t display that in your cubicle at work, nor could you at the water cooler compare the physical virtues of various of your female coworkers to the pinup, displayed or not.

    The reasoning here as I understand it is that the workplace is a kind of special place in that you are, in a real sense, forced into it. In other words, people have to make a living, so not showing up in some workplace is not an option for the vast majority of people. Since you are in effect compelled to show up in the workplace you have a right not to have to work under an unnecessarily hostile environment, that might cause stress and related physical problems, low morale, poor performance, and loss of promotional opportunities.

    A similar situation in civil rights law exists with respect to public accommodation. For example, imagine a public restaurant in which no customer was refused service, but in which a large sign proclaiming “We Hate Mormons” was displayed. The restaurant owner is entitled to his opinion aobut Mormons, and he can express that opinion in various venues, but it would be a violation of civil rights law to have that sign posted in a restaurant frequented by the public.

    I think what has happened over the years is that the kind of thinking and legal theory that exists in the workplace and in public accommodation has been applied to the university setting.

    Students are in somewhat the same situation as employees. They can’t (in the modern world) reasonably forgo higher education; in a sense they are compelled to be in university. And in a public accommodation sense they are, in effect, customers paying (at great cost) for living quarters and education, and as such they deserve to receive that service in an atmosphere that is not actively hostile.

    So I think universities are stuck in the position of trying to balance the free speech right of students, with the right of students to receive the services they have paid for without being harrassed or intimidated.

    The question is should the right of free speech always trump the right of students not to be forced to exist in a hostile environment. The problem is that free speech is a constitutional right, a right seen as a part of “natural law,” whereas civil rights related to public accommodation come from the Civil Rights Act of 1964. While the State can expand rights beyond those enumerated in the Constitution, in doing so it cannot unreasonably eliminate a constitutional right.

    Clearly, free speech in the workplace and in public accommodation does not always prevail; the right to free speech there is not an absolute right. What I don’t know is how that issue plays out in a university setting. Surely free speech is not an absolute right there either, and certainly students have some right not to have to pursue their studies in a hostile environment, more that just not being the target of physical threats or intimidation.

  9. Michael Bauman says:

    Sometimes I wonder if “free speech” and other forms of “free expression” are such good ideas. Certainly they do not rank high in the path to Theosis taught by the Orthodox Chuch. I would usually be much better off if I’d just shut-up, certainly other peole would be. Perhaps the problem is not “feedom of speech” but lack of obedience to a higher standard of thought and conduct. There is nothing wrong with calling people to a higher standard as long as the standard is not just a capricious piece of self agrandizement or a political ideology.

    We should expect negative reactions from the world when we speak and act in concert with the Truth. He promised us that. We have no right to expect anything else. We cannot proclaim the Way of the Cross and simultaneously bitch and moan when it hurts a little. “Blessed are those who are persecuted for righteousness sake”. Our job is to make as certain as we can that we are behaving and thinking in a righteous manner.