An NCAA Sweet Sixteen of Speech Codes & Spotlight Ratings

By on March 25, 2010

A side effect of my two years at FIRE is the impossibility of decoupling my knowledge of a university’s shoddy speech codes or egregious violations of student rights from my impression of the schools as a whole. Sports are not an exception to the rule; they are, in fact, the worst manifestation of this pathology.

A FIRE-inspired breakdown of the NCAA men’s basketball tournament, then, is particularly irresistible given the lens through which my view of intercollegiate sports comes through – especially after noticing that not one but two Speech Code of the Month universities had pulled off first round upsets, with Murray State University stunning Vanderbilt and the University of Northern Iowa (UNI) overcoming the University of Nevada, Las Vegas. I lamented the fact that only one green-light institution, the University of Tennessee – Knoxville, was in the tournament at all, and I took a strange pride in watching it march to the Sweet Sixteen. Particularly tantalizing to my mind was the first round match between Temple and Cornell: Who will triumph in the battle of "lost major speech code case in court" (Temple) and "can’t let religious groups stick to their own religious principles" (Cornell)?

But while I merely enjoyed this thought exercise abstractly, Alliance Defense Fund blogger Casey Mattox went whole hog with the idea: he’s predicting out the remaining games through a liberty-tinted crystal ball. Here’s Mattox’s methodology, which borrows heavily from FIRE’s speech code ratings and case history:

  1. FIRE’s red/yellow/green light rating is an important factor.
  2. Prior and current First Amendment violations by a campus are negatives that can cause a school to lose to a school that only has bad policies on paper.  Practice trumps policy.
  3. A university will not be excused for its past violations just because the policies have now been changed as a result of litigation.      
  4. Private universities get some leeway, but not a complete pass.  Otherwise the exercise becomes pointless as Baylor and St. Mary’s battle to a scoreless tie.
  5. Duke must lose.    
  6. I retain the authority to apply additional criteria as I choose and to apply the above criteria in any manner I wish.  One might say my discretion is unbridled.  Especially insofar as is necessary to give effect to rule 5.

(Reasonable people can disagree about rule 5. For example, FIRE Vice President Robert Shibley is, sadly, a Duke alum.)

Put into practice, here’s how Mattox prognosticates the outcome of tomorrow evening’s match between UNI and Michigan State University:

Northern Iowa v. Michigan State

Michigan State was recently on FIRE’s red alert list of schools with some of the worst speech codes in the country after it applied a spamming policy to prohibit a student from emailing professors to protest a university decision.  However, without litigation it has since amended its codes making Michigan State a yellow light school in FIRE’s ratings. 

Northern Iowa, despite its heroics in knocking off Kansas, is also a FIRE red light school.  In fact, it had the speech code of the month in 2008 where FIRE noted that the school prohibits "inappropriate words" in its "bias incident" policy.  

In the end, while it is a close call between these two non-paragons of freedom, Michigan State beats Northern Iowa on the strength of a late three-pointer by Dean Joan Howarth of the Michigan State Law School, an ACLU member and GLBT advocate who wrote a law review article defending CLS’s position in CLS v. Martinez.  Such intellectual honesty is refreshing and commendable. 

Pick-Michigan State

Mattox’s blog is thoroughly amusing even as it makes the very real, and depressing, point that nearly every school present brings some major free speech baggage with it.

I’ll let you read the rest of Mattox’s blog for the other predictions. I will say this, however: you’re not likely to see any other methodology predict a championship match between Tennessee and Baylor. We’ll see starting this evening how it holds up.