FIRE Pens Open Letter to President Obama

By January 20, 2009

This Inauguration Day, the Foundation for Individual Rights in Education has sent President Barack Obama an open letter requesting that, as a scholar of constitutional law and the leader of the nation’s executive branch, he and his administration join the fight against college and university speech codes that are infringing on the rights of millions of our nation’s college students.

As Greg says in today’s press release:

Millions of American students are being taught that colleges have the power to censor and punish speech that the Bill of Rights protects … Failing to educate an entire generation about our constitutional ideals of liberty—and, still worse, actually teaching students that they have a duty to censor opinions with which they disagree—means that it will not be long before these illiberal attitudes result in severe consequences for our Republic.

Our letter informs President Obama that "despite ten federal court decisions unequivocally striking down campus speech codes on First Amendment grounds from 1989 to 2008, the number of unconstitutional restrictions on campus speech actually has dramatically increased during that time." The details behind our study of hundreds of speech codes, which found that 77% of public colleges and universities maintain speech codes that fail to pass constitutional muster, are posted in our Spotlight: The Campus Freedom Resource database.

While there is no shortage of examples of free speech violations to choose from, we chose for the letter some of the most outrageous recent cases. At Valdosta State University in Georgia, a student was expelled for creating a satirical online collage to peacefully protest the university’s plans to construct campus parking garages. At Indiana University–Purdue University Indianapolis, a student-employee was found guilty of racial harassment for reading a book with pictures of Klansmen on the cover, despite the fact that the book was celebrating the defeat of the Ku Klux Klan. While we won both of those cases, FIRE is still fighting on behalf of a student government leader at Michigan State University who was found guilty of violating the school’s spamming policy simply for sending an e-mail to a group of faculty encouraging them to weigh in on proposed changes to university policy.

As for private colleges, they too are failing to uphold the promises of freedom of expression they have made to students and faculty. At Brandeis University, FIRE is fighting for a professor found guilty of racial harassment because he used the term "wetbacks" in order to explain and critique the term in his Latin American Politics class. At Tufts University, FIRE has been fighting to overturn a finding of racial harassment against a student newspaper for printing factual information about Islam as part of a satirical advertisement.

Then there are the speech codes themselves:

  • "Speech zone" policies like the one at the University of Cincinnati, which limits the free speech activities of 37,000 students to only one area of campus, requires that activities in that area be formally scheduled with the university, and threatens students who violate the policy with criminal trespassing charges.
  • "Student rights and obligations" policies like the one at Texas A&M University, which prohibits students from violating others’ "rights" to "respect for personal feelings" and "freedom from indignity of any type."  
  • Computer use policies like the one at Northeastern University in Boston, which prohibits students from using campus e-mail accounts or servers to send any message that, "in the sole judgment of the University," is "annoying" or "offensive."
  • Diversity policies like the one at The Ohio State University, which warns that "[w]ords, actions, and behaviors that inflict or threaten infliction of bodily or emotional harm, whether done intentionally or with reckless disregard, are not permitted." (Emphasis added.)

The most common type of speech code, as our letter states, comes in the form of absurdly overbroad "harassment policies." For example:

  • The University of Iowa defines sexual harassment as something that "occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is."
  • Davidson College’s sexual harassment policy prohibits the use of "patronizing remarks" and, heartbreakingly, explicitly prohibits "comments or inquiries about dating."
  • The University of the Pacific’s harassment policy prohibits conduct "that undermines the emotional, physical, or ethical integrity of any community member."
  • Jackson State University’s harassment policy bans, among other things, speech which "degrades," "insult[s]," or "taunt[s]" another, "use of profanity," and "verbal assaults."

In our press release, Will explains why we are asking for the President’s help:                                                          

[O]ur nation’s institutions of higher education have seemingly ignored clear pronouncements from both the legislative and judicial branches … College harassment policies have inexplicably failed to adhere to the precise legal standard announced by the United States Supreme Court in Davis v. Monroe County Board of Education, and Congress, while Obama was a U.S. Senator, issued its second ‘sense of Congress’ resolution in just ten years on the value of free speech on campus, but to little practical result.

In Davis, the Court defined student-on-student harassment as conduct which is "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." Many schools, however, ban a substantial amount of protected speech by defining harassment with a very broad brush, as in the examples above.

"If President Obama simply speaks out against speech codes," Greg says in the press release, "colleges will get the message that they must finally begin to obey the law."

Here is what President Lincoln had to say about education and the rule of law in America in his "Lyceum Address" of 1838:

Let every American, every lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. … While ever a state of feeling, such as this, shall universally, or even, very generally prevail throughout the nation, vain will be every effort, and fruitless every attempt, to subvert our national freedom.

If you agree, please consider contacting President Barack Obama at 202-456-1111 or comments@whitehouse.gov.

Schools: Brandeis University Michigan State University Valdosta State University Tufts University Indiana University – Purdue University Indianapolis