Last December, Edinboro University of Pennsylvania earned a red-light rating from FIRE for its sexual harassment policy, which unconstitutionally prohibits any "comments about an individual's body, sexually degrading words to describe an individual, offensive comments, off-color language or jokes, innuendos and sexually suggestive objects, books, magazines, photographs, cartoons or pictures."
Since that time, the U.S. Court of Appeals for the Third Circuit—which includes all of Pennsylvania—ruled that Temple University's former sexual harassment policy was unconstitutional. That ruling called into question the constitutionality of speech codes at universities across Pennsylvania, New Jersey, and Delaware—including at Edinboro University of Pennsylvania. In fact, Edinboro was one of twenty public universities in the Third Circuit that received a warning letter from FIRE in September 2008, advising it to abandon its unconstitutional speech codes in the wake of the Third Circuit's decision in DeJohn v. Temple University.
Now, we cannot be certain of the precise catalyst for the sudden veil of secrecy at Edinboro—all we know for sure that Edinboro took this action sometime between December 10, 2007 (when FIRE last updated Edinboro's Spotlight entry) and today. But whatever the reason, it does not look good for the university. Edinboro cannot skirt its obligations under DeJohn by simply hiding its policy from the public; the truth will come out, and if Edinboro is still violating its students' constitutional rights in direct violation of a federal court decision, there will be consequences.
Posted by Samantha Harris on December 1, 2008, at 03:33 p.m.
FIRE announces its Speech Code of the Month for December 2008: Lone Star College in Texas.
FIRE recently addressed the suppression of free speech at one of the colleges in the Lone Star College System, when Lone Star College–Tomball censored a student group for distributing a jocular flyer listing "Top Ten Gun Safety Tips." The flyer, which was obviously intended to be a humorous David-Letterman-style top-ten list, included entries such as "no matter how responsible he seems, never give your gun to a monkey" and "if your gun misfires, never look down the barrel to inspect it." Despite the authors' clearly humorous intent, the college administration invoked the Virginia Tech shootings to confiscate the flyers and threaten the group with derecognition and disciplinary action.
Now, FIRE has learned that the Lone Star College System maintains speech codes that threaten free expression at all five of the system's campuses. The most vague and overbroad of these policies, found in the system-wide Student Code of Conduct, prohibits any "vulgar expression" on any Lone Star College campus, including in electronic communications.
Since sensibilities vary widely from person to person, the definition of what is "vulgar" depends entirely on who is hearing or viewing the expression in question. What is perfectly acceptable to one person may be vulgar to another, and without further definition, students will be left to guess at how the college might apply this policy. In order to avoid being unconstitutionally vague, the Supreme Court has held that a regulation must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Since "vulgarity" is so subjective, students have no way of knowing what exactly is prohibited by this policy, making it impermissibly vague.
In addition to being vague, the policy is also overbroad because it explicitly prohibits constitutionally protected speech and expression. The majority of speech that most people would consider "vulgar" is still protected by the First Amendment. Satire and parody, for example, are two of the most ferociously protected forms of expression, and they are also frequently two of the most crude and vulgar forms of expression, using shock value to convey powerful social commentary. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the Supreme Court ruled that the First Amendment protects even the crudest parody—in that case, a cartoon suggesting that the Reverend Jerry Falwell's first sexual experience was a drunken tryst in an outhouse with his own mother. This undoubtedly "vulgar" speech is protected by the First Amendment, and such expression likewise must be protected by Lone Star College. Even expression that is actually profane enjoys constitutional protection; in Cohen v. California, 403 U.S. 15 (1971), the Court upheld a Vietnam War protestor's right to walk into a courthouse wearing a jacket reading "Fuck the Draft."
By prohibiting any expression that some unnamed person (a college administrator? the listener?) deems "vulgar," the Lone Star College System is unlawfully violating its students' First Amendment rights. For this reason, Lone Star College is our December 2008 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please e-mail speechcodes@thefire.org with a link to the policy and a brief description of why you think attention should be drawn to this code. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.
Let LSCS General Counsel Brian S. Nelson know what you think.
We're looking for rising second- and third-year law students with an interest in First Amendment law. Among other tasks, legal interns will work directly with FIRE attorneys to perform legal research and compose memoranda on current FIRE cases and issues; therefore, we ask that all applicants possess excellent legal writing, research, and analytical skills. While supervised and well-structured, our Legal Internship allows participating students significant autonomy in developing their own legal interests within FIRE's focus on constitutional law on campus. FIRE attorneys will be available for assistance in the development of writing samples and legal scholarship.
I myself am a former FIRE legal intern, so I know just how useful a summer at FIRE can be. After my first year of law school, working for FIRE allowed me to focus specifically on constitutional law, while simultaneously sharpening my research skills. In the context of researching First Amendment issues on campus, I learned first-hand how constitutional law can directly impact individuals and institutions. After my internship, I returned to law school for my second year more confident in my own abilities, and ready for my time at the New York University Law Review.
For more information about FIRE's Legal Internships, including how to apply, please visit this information page. We very much look forward to receiving your application.
Posted by William Creeley on December 1, 2008, at 10:15 a.m.
The National Association of Scholars is hosting its thirteenth conference, "The Changing Landscape of American Higher Education," in Washington, D.C., on January 9–11. FIRE's president, Greg Lukianoff, is participating in the first panel discussion, which examines the contest between the government's regulatory urges and the explosive energy of new information technologies. Adam Kissel, Director of the Individual Rights Defense Program, will also take the podium to discuss FIRE's highly publicized case at the University of Delaware. NAS and FIRE have often worked together, and both organizations have fought for basic rights on college campuses.
If you are in the D.C. area and want to see FIRE staff in action, register to attend the conference today!
Posted by Alisha Glennon on November 26, 2008, at 01:51 p.m.
As the fall semester of 2008 begins its long draw to a close and we stand before our annual day of thanks, I cannot help but reflect on this year and this season and what it means for liberty on campus.
It is easy to be gloomy. Outside of the world of higher education, volatile markets, collapsing banks and rising unemployment are sending shivers down the spines of the whole nonprofit community—and the whole country. Meanwhile, despite being defeated time and time again in public battles with FIRE, universities have continued punishing students and faculty for their words, opinions, and beliefs.
So what, in these uncertain and illiberal times, do we have to be thankful for?
I would say plenty. We should be thankful that since its founding nine years ago, FIRE has secured 137 public victories at 110 colleges and universities whose total enrollment exceeds 2.3 million students. FIRE is directly responsible for changing unconstitutional or repressive policies affecting more than 1.4 million students at nearly 70 of these universities. We should be thankful that, within the past year, both a federal district court in California and the Third Circuit Court of Appeals continued a two-decade-long unbroken chain of defeats for campus speech codes. Now administrators at public colleges that enforce speech codes or violate students' free speech rights will be hard-pressed to argue that they deserve to be protected from personal liability through qualified immunity—a message that, once it gets through to campus administrators, could genuinely change the way they approach student rights. We should be thankful that now nearly one thousand students have joined FIRE's Campus Freedom Network—a nearly fivefold jump from this time last year, and a powerful indicator that the desire for change on campus is strong. We should even be hopeful that the economic downturn will cause parents and students to be more critical of their universities, perhaps asking themselves: "Why should I pay $50,000 a year so universities can hire more administrators that propose and promote speech codes, that punish students for their opinions, that use coercive means to achieve dreary ideological conformity, and, in some cases, presume students guilty without even a modicum of due process?"
Most of all, I am thankful to our founders, our devoted, creative, principled, and industrious staff, and especially to our supporters, without whom FIRE's success would simply not be possible. I have great hope for the final weeks of 2008, and even greater plans and expectations for 2009. Lastly, I am thankful for all you wonderful, loyal Torch readers. The more people know about the abuses taking place on our nation's campuses the more likely they are to end.
Thank you for all your help and have a very happy Thanksgiving!
Posted by Greg Lukianoff on November 26, 2008, at 12:32 p.m.
Since I have taken Wabash College to task in a recent post, it is only fair for me to say a few words about Wabash's longtime Indiana rival, DePauw University. Unfortunately, my work is made quite easy by DePauw's quite appalling speech code.
FIRE gives DePauw a red-light rating because of its policies that both clearly and substantially restrict freedom of speech. DePauw promises that "students are free to examine and discuss all questions of interest to them and to express their opinions publicly and privately." But this is not true.
To be unlawful, conduct must be so severe and pervasive that it unreasonably interferes with an employee's ability to work or a student's ability to learn. The University does not, however, condone or tolerate any inappropriate conduct, whether by employees or non-employees, based on a person's race, sex, color, creed, religion, ... [emphasis added]
Here are the examples of "inappropriate conduct"—apparently one such instance is enough, for no such conduct is tolerated:
Inappropriate conduct may include, but is not limited to:
Ethnic, racial, religious, age, disability or sex-related jokes, epithets, stereotypes or slurs.
Foul or abusive language.
Offensive graffiti, cartoons or posters.
Insulting or derogatory nicknames.
Mimicking another.
Starting or spreading rumors.
Teasing about religious or cultural observances, retirement, age, ability to learn, or absenteeism.
Threatening or offensive mail, e-mail, voicemail or messages.
Amazingly, all—not just some, but all—of these examples are about speech, not conduct. "Stereotypes" (of various kinds, otherwise unspecified) are banned, as are "mimicking" and "teasing about ... absenteeism" and "derogatory nicknames."
Unsolicited and unwelcome comments or conduct of a sexual nature or that are demeaning to women or men as a group (for example, offensive or vulgar jokes, name-calling, comments about one's body or sex life, or stereotyping based on a person's sex);
Unwelcome and unwanted sexual jokes, language, gestures, epithets, innuendoes, advances or propositions; sexually oriented "kidding," "teasing" or "practical jokes;"
Sexually oriented propositions, slurs, suggestions or questions;
Written or verbal abuse of a sexual nature, including, for example, using sexually degrading or vulgar words to describe an individual;
The display of sexually suggestive or revealing objects, other material or offensive pictures, electronic communications or photographs (this prohibition does not apply to University approved art exhibitions or other University approved displays or communications);
Unwelcome and unsolicited information about another's sexual prowess, activities, deficiencies or sexual orientation;
Asking questions or commenting about another's sexual activity or making unwelcome sexual advances or expressed or implied requests for sexual activity;
Offensive or inappropriate behavior targeted at only one sex, even if the content of the conduct or comments is not sexual;
Unwelcome physical contact, such as patting, pinching, touching, leering, ogling, whistling, indecent exposure, brushing against the body, or suggestive, insulting or obscene comments or physical gestures. [Emphasis added; some examples omitted.]
One of my favorites here is "Offensive or inappropriate behavior targeted at only one sex, even if the content of the conduct or comments is not sexual." That's right: at DePauw, you can be branded a "sexual harasser" without actually mentioning anything sex-related—which removes all meaning and legitimacy from the term. I can understand why some people on campus would not want to be subjected to material they find offensive or inappropriate, to negative stereotypes, to "slurs," and to some of the other speech proscribed here. But these proscriptions would never pass constitutional muster at a public college, for words such as "inappropriate" are unconstitutionally vague and give administrators incredible discretion to police speech. The result is a chilling effect on speech, for students at DePauw really do not know what they are truly allowed to say and what they may not say. Remember, no instance of such "conduct" is tolerated at DePauw. And DePauw has not even provided a full list of intolerable expression ("Such behavior may include, but is not limited to ...").
Add these restrictions to the following one, and there's nowhere on earth that DePauw students are safe to express their constitutional rights: "At DePauw, we have a vital interest in the character of our students and may regard off-campus behavior as a reflection of a student's character and his/her fitness to continue to be a member of the student body." So, don't mimic your little brother when you go home for Thanksgiving, because he might call DePauw and make a credible claim, under the rules, of punishable harassment.
Again, DePauw promises that "students are free to examine and discuss all questions of interest to them and to express their opinions publicly and privately." This promise is totally inconsistent with DePauw's speech code. I haven't even provided all of it yet. Here is part of DePauw's Electronic Communications and Acceptable Use Policy:
Electronic communication facilities shall not be used to access or transmit electronic communication[s] which promote or contain offensive, unlawful or inappropriate content, including, but not limited to content that is slanderous, defamatory, harassing, vulgar, threatening, intimidating, offensive, or that promotes hate or violence; or which is racially inflammatory or inappropriate; or which is pornographic, or sexually offensive; or which consists of offensive comments based on gender, or any other content that denigrates or demeans persons on the basis of race, age, gender, national origin, disability, religion, sexual orientation or any basis protected by law. This prohibition shall not apply to educational and professional work that requires such access or transmission.
Run this one through First Amendment analysis, and the red ink just won't stop flowing.
DePauw's official seal includes the words "DECUS LUMENQUE REIPUBLICAE COLLEGIUM" ("the college is thehonor and light of the republic"). How can DePauw students adequately fulfill their roles as adult citizens of the U.S. republic if the rules they live under at DePauw give them so much less freedom than they enjoy off campus and DePauw can even punish them for off-campus speech?
Posted by Adam Kissel on November 25, 2008, at 01:56 p.m.
"Anger and controversy," Robert wrote yesterday, "have been swirling at North Carolina State University about messages painted in N.C. State's 'Free Expression Tunnel' on November 5 in the wake of Barack Obama's presidential election victory." The messages were clearly racist and have disturbed people both on and off campus.
Why has N.C. State censored these messages but in fact has celebrated the display of other violent messages against the leader of another country?
Someone once painted a poem in the Tunnel which many people on campus probably would interpret as "hate speech" against Muslims. The poet called an Islamic nation's people "pigs" and "swine dogs" and explicitly promoted violence, writing about "the chance to kick your ass." The poet also appeared to call for the end of Islam or at least of the nation's leader: "your holy man's time is drawing near."
Here are those words in context:
I WILL STILL ENJOY THE SHOW / AS WE NUKE YOU TILL YOU GLOW ... / ... / IRAN YOU JUST LISTEN HERE / YOUR HOLY MAN'S TIME IS DRAWING NEAR / IT[']S HIS OWN MURDERING PIGS HE HAS TO FEAR / ... / OUR OWN ARMY DANCES WITH DELIGHT / AT THE CHANCE TO KICK YOUR ASS LEFT AND RIGHT / YOU SWINE DOGS HAD US BY A SHORT HAIR / ...
Has the university in any way criticized this speech? I haven't seen any criticism. Actually, the university has advertised this language to incoming students in a picture here as an example of the Free Expression Tunnel in all its glory.
You see, incoming students at the university are promised that the Free Expression Tunnel is really free, a place on campus that "gives students a venue for expressing their thoughts and feelings about anything." "Anything" includes hateful speech that rejoices in potential violence against Iran and its government officials. (By the way, that poem was painted in 1979, targeting Ayatollah Ruhollah Khomeini.) "Anything" also includes hateful, racist, violence-oriented speech against President-elect Obama, as Robert has amply demonstrated in response to calls to punish four students unconstitutionally for having expressed their thoughts and feelings in the Free Expression Tunnel. While it may be less controversial, speech is not less "hateful" simply because it is directed at foreigners rather than at Americans.
I wrote about North Carolina State University's habit of unconstitutional censorship last year, when I learned that the university was targeting specific instances of "hate speech" to be painted over. Instead of having a viewpoint-neutral policy of painting over the whole tunnel on a regular schedule, the university was choosing when to paint over the tunnel on the basis of the content of the speech in the tunnel.
A commitment to free expression means nothing if it cannot survive the test of extremely unpleasant speech. "Hate speech," however hateful, is almost always protected by the First Amendment. Very little such speech ever rises to the level of incitement—not even the recent speech in the tunnel which referred to killing the President-elect.
I said it last year and will say it again: for N.C. State to advertise its Free Expression Tunnel to potential students as a place for unmonitored expression—but in reality to have a policy in which speech there is selectively censored—is fraud and a mockery of freedom.
Posted by Adam Kissel on November 25, 2008, at 01:46 p.m.
Wabash College, a liberal arts college for men in Indiana, famously has only one rule of student conduct, the "Gentleman's Rule": "The student is expected to conduct himself at all times, both on and off the campus, as a gentleman and a responsible citizen."
It is implied that faculty members and administrators (including some women) are gentlemanly, too, and that they should act accordingly. Such a rule as the Gentleman's Rule would be unconstitutionally vague at any public college. The tradition at Wabash, however, is to interpret the rule as providing a great deal of freedom for the students, and until recently, students and faculty members have trusted that the rule would not be enforced arbitrarily or unjustly. There seems to be no explicit due process protection for students, just an expectation of basic fairness. (I think the college could easily state some protections and give students some due process guidance without interfering with the Gentleman's Rule as a rule of student conduct.)
Nevertheless, it may well be that students at Wabash are freer than their counterparts at most other schools, many of which have speech codes, "free speech zones," wildly unconstitutional anti-harassment policies and "zero-tolerance" policies against hate speech, or even "bias incident" reporting systems, where students can report (sometimes even anonymously) on each other's so-called unacceptable biases. Wabash has none of these.
But when I was on campus last Wednesday, I learned a lot about an issue that has roiled the campus, engendered distrust among students and faculty members who do not understand what is going on (and seem to be getting contradictory accounts from various parties involved), and put the status of the Gentleman's Rule in a bit of jeopardy.
The issue began when some students, or at least one student, broke the law and engaged in underage drinking, possibly while students over 21 looked the other way. The student returned to his Delta Tau Delta fraternity house after drinking far too much and subsequently died. While a police investigation was underway, a number of senior leaders of the fraternity were interviewed by the administration. Within weeks, the college disbanded the fraternity and required the students over 21 to leave the fraternity house and live elsewhere. The whole student body was notified of these punishments and was told, as one would expect, that administrators had found "a culture and practice of ungentlemanly behavior and irresponsible citizenship" at the fraternity.
So far, so good; this outcome is more or less what everyone I talked with on campus was expecting. Although many questions remain—did the fraternity really need to get shut down so quickly, and was it just for the seniors to be told on Thursday that they must leave their fraternity brothers and find new housing by Sunday?—and those I spoke with expressed concern that they are not getting the information they want, the general feeling is that people on campus can see how this result seems fair enough. What has raised serious questions, however, is the next step taken by administrators. Apparently, at least two of the student leaders of Delta Tau Delta were told that they were so unfit for leadership that they must resign their leadership positions in other student organizations. Thus, the Sphinx Club (a spirit and leadership club) and—of all things—the Cooking Club both lost their presidents. The students involved are keeping silent and seem to be pretty scared of retaliation, but the universal understanding on campus appears to be that the students were forced out and that they did not "voluntarily" leave their positions.
Does the administration have the right to decide who is fit to be a leader of a student organization and demand that student leaders step down? Because the rules at Wabash are so vague, nobody is quite sure, but the move seems unprecedented to those I spoke with.
In any case, the students themselves don't buy the administration's actions. In fact, last year, the Student Senate passed a resolution asserting that student groups will not tolerate outside interference in their leadership choices. That legislation has been invoked again this year by both student government organizations on campus, the Student Senate and the Senior Council, both of which have passed resolutions demanding that the administration stop "interfering with the right of students of Wabash College to select the leaders of their student organizations." In addition, the student newspaper, The Bachelor, has taken sides, publishing a front-page
