Full Text of Donald Downs’ Letter to ‘The Chronicle of Higher Education’ about FIRE

By May 18, 2007

This week, The Chronicle of Higher Education published a letter by Professor Donald Downs (subscription required), a consistent and principled defender of campus freedom of speech, responding to Professor Jon B. Gould’s attack on FIRE from several weeks ago. Professor Downs has given us permission to reprint the full text of his letter:
Jon Gould’s critique of the Foundation for Individual Rights in Education, “Returning Fire,” requires response. I agree with one thrust of the essay: that the status of free speech and academic freedom on campus in 2007 needs to be reassessed and evaluated on the basis of empirical evidence and inquiry. Things might not be as bad as they were in the 1990’s and early 2000’s for several reasons (one of which could well be FIRE’s entry into the playing field, by the way). Indeed, I recently posted an essay on the web page of the National Association of Scholars calling for further empirical investigation of this very question.
But Gould’s critique is troubling in several respects. First, he implies that institutions of higher learning were bastions of free speech throughout the 1990s. My own experience and that of many others, coupled with countless published reports, suggest otherwise. Even if such studies are anecdotal, they suggest or point to an extensive problem that should not be lightly dismissed. We can argue over the extent, but that is different from claiming no problem has existed. Second, Gould does not address how harassment codes themselves have been used to silence or threaten free speech in practice, regardless of how constitutional such policies might be on paper. A great deal of mischief can be done by such application, which can easily take place beneath the radar screen. The devil often lies in the application, not on the written page.
Third, Gould unfairly blames FIRE for not addressing cases involving private school suppression of speech, deferring to private schools’ rights to determine their own educational agendas. Gould ignores the fact that it is appropriate for FIRE to get involved in these cases only when such institutions violate their own charters or agreements with students, for such institutions have a First Amendment right (based on freedom of association) to promote their own visions or nomos. Free speech principles apply to such schools only when they willfully make them part of their institutional missions. Furthermore, FIRE can act only when clients bring them cases. (And FIRE has been involved in cases that they have kept out of the public limelight because of the wishes of their client.) Whether FIRE has avoided cases that fit these criteria is an empirical question to which only FIRE can respond.
If free speech is more secure in higher education today than in the past, FIRE is very likely one important reason why. Whereas many more traditional academic freedom organizations acted with too much caution in the 1990s for whatever reason, possibly because the politics of censorship differed from the past, FIRE acted with the conviction that is necessary to preserve freedom in the face of pressure. Only the ACLU has come close.
Donald A. Downs
University of Wisconsin, Madison
Thank you, Professor Downs, for the response and for defending FIRE’s important work! Your kind words mean the world to us.
 
On a different note, while I agree with Professor Downs that another empirical study of speech codes could be useful, we have already provided what we believe to be the most extensive and accurate study of the state of college speech codes to date. I also cannot help but have some skepticism about other potential studies of campus speech codes because, frankly, too many legal scholars have been highly unreliable when it comes to predicting or evaluating the constitutionality of campus codes. Many of the codes that have been struck down by courts were, in fact, constructed with the help of constitutional law professors. For example, Stanford Law School professor Tom Grey helped write the Stanford speech code that was struck down in 1995, law professor Richard Delgado helped write the University of Wisconsin at Madison code that was struck down in 1991, and several University of Michigan Law School professors helped construct their code, which was struck down in 1989. Indeed, the results of Gould’s own study indicate to FIRE that even scholars who care about the problem of speech codes can wildly underestimate the problem.
 
The problem, I fear, is that over time, legal scholars have become so accustomed to speech codes and wildly overbroad harassment codes that they simply accept them as lawful and untroubling. This, of course, has not been the case in the courts, where every challenge to a collegiate speech code that has resulted in an opinion has overturned that code and every sustained legal challenge to a speech code that FIRE deemed a “red light” has resulted in the code being overturned or abandoned. It’s also possible that the idea of speech codes is popular enough among law professors that they are not approached with the skepticism that is warranted in light of the courts’ opinions of them. For whatever reason, when it comes to collegiate speech codes, the disconnect between legal scholars and the law sometimes seems to be very deep.
 
Ultimately, I agree with Professor Downs that there should be more research on the topic. But those who would make decisions based on this research should be aware that its accuracy depends to an enormous extent on who would be doing the research. Given academia’s tendency to protect itself, the fear is that rather than getting a sober evaluation of constitutionality of university codes, we might get stuck with a whitewash.