Liberating America’s Intellectual Gulags

April 15, 2005

David French knows what intimidation is. French, the new President of the Foundation for Individual Rights in Education, graduated from Harvard Law School in the early 1990s. One might say that anyone with similar credentials ought to know the definition of intimidation – but French’s experience is a bit more personal than that.“As a pro-life, Christian conservative, I received death threats in my campus mailbox, was shouted down by students and (once) was even shouted down in class by my own professor,” he says about his years in Cambridge. French now spends much of his time explaining to university general counsels that being “offended” by another’s views is not intimidation – a distinction that might seem obvious but is apparently not so on today’s campuses.Although unintentionally, French’s work with FIRE most often causes him to defend conservatives and Christians like himself. As any reasonable observer of the modern academy knows, conservatism and Christianity are far from majority opinions on campus – which is a polite way of saying that adherents of those schools of thought are often perceived the same way as circus animals in the larger culture.But that is not a problem worthy of FIRE’s attention – the organization has no political or religious orientation. French’s second-in-command, attorney Greg Lukianoff, is an outspoken liberal. French’s assistant, program officer Ebony Burris, characterizes herself as an “atheist Christian” and displays an anti-Bush button in her office; her fellow program officer Minnie Quach is a devout Muslim with reliably left-of-center political views. Indeed, FIRE’s office display infinitely more diversity than any university faculty lounge.

Where FIRE becomes concerned with the plight of conservatives and Christians on campus is what too often happens after they seek to defend their embattled views – that is, they are silenced. French describes the behavior of those in power at universities as “an outpouring of censorship.” The proof? “In four years, FIRE has fought for religious liberty at almost 50 colleges and universities – from the highest levels of academia (Ivy League schools and Ivy equivalents) to the community college level,” he says. “At each one of these schools, Christian student groups were either expelled from campus or threatened with expulsion. Imagine the public outcry if almost 50 schools sought to exclude African-American or gay rights groups from campus.”

Imagine indeed. Unless FIRE is somehow making its cases up, freedom of speech, religious liberty, freedom of assembly, and liberty of conscience are all endangered species in today’s academe. And things may be getting worse.

“Without question, in the last twelve months we have seen a dramatic increase in complaints,” French remarks. But French posits that this might be the last gasp of a doomed horde of failed censors: “I have a real sense that campus totalitarians feel that their grip may be slipping and are fighting back, hard.” He continues, “The foundation is cracking. It is fundamentally incompatible with a free society to set up universities that despise basic individual liberties like free speech, free exercise of religion, and freedom of conscience.” In French’s estimation, “The public is beginning to realize that the emperor has no clothes, and there is much greater awareness of the true nature of the university education.”

If the public is in fact making such a realization, one might say the lion’s share of the credit goes to FIRE. During its brief life, the vibrant young organization has been tireless in its public exposure of universities’ transgressions against liberty – regardless of whose liberty is taken away. And in the realm of free speech, which is where French says FIRE has “made the most headway,” FIRE’s Legal Network has undertaken an ambitious litigation campaign, the goal of which is to overturn campus “speech codes” in every federal appellate district.

Speech codes are campus policies that outlaw speech that would otherwise be protected by the First Amendment. When French was a law student, the Supreme Court invalidated such codes at public institutions such as the University of Michigan on First Amendment grounds. But in the wake of that decade-old litigation, many universities have essentially reconstituted speech codes under different names. As French puts it, no one is willing anymore to defend speech codes in their own right. Instead, regulations banning speech that the listener finds “offensive” have been inserted into harassment policies, diversity mandates, and other ostensibly innocuous places.

In FIRE’s experience, there exists a despicable double standard in the enforcement of speech codes. French’s staff has often had to keep universities from censoring “affirmative action bake sales,” satirical events in which conservative students charge different races different prices for baked goods, whites or Asians paying the most. University administrators apparently being unaware of their own laughability, these bake sales – intended to showcase the discrimination the students see as inherent in affirmative action – are often shut down for being “discriminatory.” Yet other extremely offensive expression, such as Eve Ensler’s play The Vagina Monologues, which depicts such things as a 24-year-old woman seducing a 16-year-old girl, are permitted. The obvious conclusion is that only some sensibilities are sacrosanct – the politically correct ones.

In the past year, FIRE has coordinated lawsuits against the speech codes at four public institutions: Shippensburg University in Pennsylvania, Citrus College in California, Texas Tech, and SUNY Brockport. The SUNY case is still being litigated, but Citrus quickly settled and, most importantly, Shippensburg and Texas Tech both lost. As French put it, “These victories send a clear message that speech codes based on banning speech that is ‘offensive’ to individual listeners are unconstitutional.”

Along with Lukianoff and FIRE co-founder Harvey Silverglate, French wrote the recently released book FIRE’s Guide to Free Speech on Campus, a primer on how expressive rights are threatened on campus and how to defend them. The book features a chapter showcasing various nefarious ideas that have faced censorship throughout history due to “offensiveness” – vile plagues such as heliocentrism (the belief that the planets revolve about the sun) and abolitionism, driving home FIRE’s point that the mere fact that someone is “offended” by something being said does not mean it should be outlawed. One would think that universities, whose central concern is ostensibly the search for truth, might be particularly cognizant of this fact – but judging by FIRE’s ever-increasing caseload, one would be wrong.

Defending religious liberty is also dear to French’s heart. While still in private practice, he became the first member of FIRE’s Legal Network, a pro bono group that defends the relatively rare students and professors whose universities refuse to back down after losing in the court of public opinion. During the same time, he served as religious freedom counsel for InterVarsity Christian Fellowship. “Between 1999 and 2004, I worked to protect more than 35 different Christian fellowships from expulsion from campus,” he says.

Much of FIRE’s attention vis-à-vis religious liberty has been focused recently on the University of North Carolina’s storied Chapel Hill campus. The most recent case drawing FIRE’s attention was UNC’s attempt to shut down a Christian fraternity on the grounds that its requirement that its members be Christians violated UNC’s “nondiscrimination” policy. After UNC refused to back down, FIRE helped the fraternity sue and a court recently issued a preliminary ruling in the fraternity’s favor. But there is much more to UNC’s repression than this one “ridiculous” case, French charges: “When you dig deeper, you see that this action was only the latest in a long series of acts designed to minimize the Christian presence on campus.”

According to French, FIRE’s research has shown that “Publicly available records indicate that UNC first sought to ban Christian groups that reserved membership or leadership for Christians more than seven years ago. The university’s counsel at the time argued that such an action would be unconstitutional.” So the university waited until that counsel resigned and then moved against the Christian groups, demanding they essentially waive their right to be Christian.

UNC is unfortunately part of a larger pattern, French says, including the attempted eviction of a Christian sorority at Purdue, the attempted banning of InterVarsity at Tufts, and the demotion of a professor at a community college in Ohio after he told his philosophy class his Catholicism influenced his philosophy. “It is important for the larger Christian community to realize that their very presence on campus is imperiled,” he says. But judging by a victory FIRE just won at Louisiana State, so are Muslim groups – one there fell victim to the same Orwellian redefinition of a nondiscrimination policy that has reared its ugly head across the country, until FIRE intervened.

Despite all FIRE’s victories, French says, “the censors are still dominant on campus.” And the evidence appears to bear out his position. FIRE recently intervened at Rhode Island College, where students were compelled to lobby the legislature for positions they disagreed with, as well as LeMoyne College, where an education student was expelled for advocating teaching strategies with which the administration disagreed (including, not insignificantly, a rejection of traditional “multiculturalism” in the curriculum). These shocking abuses of freedom of conscience go beyond even what FIRE has fought in the realm of religious liberty, amounting to what the FIRE staff calls “mandated orthodoxy.”

But, French says, there is “light at the end of the tunnel.” Beyond the legal victories in FIRE’s Speech Codes Litigation Project, there appear to be changes in the culture. Students at the University of Alabama, French crows, recently passed a resolution condemning their faculty’s attempts to pass a speech code – one part of what he calls a new “coherent protest movement against campus repression” on the part of students. The Association for Student Judicial Affairs, a group made up of the same people who often receive letters from FIRE demanding they stop taking away students’ individual rights, has passed its own resolution with similarly ironclad praise of free speech, going so far as to invite FIRE to address its annual convention twice.

These changes in the culture, French would surely point out, will not only help the conservatives and Christians who (at least for the moment) face the brunt of the wrath of the campus thought police. Indeed, he says, “The key to FIRE’s success is that we defend the underlying principles, not the viewpoint of the speaker.” He continues, “We are not defending evangelical Christianity, or conservative Republicanism, or (in some of our prominent cases) radical leftist anti-Americanism. We defend religious liberty, we defend free speech, and we defend the rights of conscience.”

If French is to be believed, “Those values are broadly agreed upon and fair-minded individuals across the political spectrum agree on their importance” – and if the Founding Fathers who took such pains to write them into our constitution are to be believed, their preservation is crucial for all Americans, regardless of politics, religion, or anything else.

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Schools: Citrus College Rhode Island College Shippensburg University of Pennsylvania State University of New York – Brockport Le Moyne College Texas Tech University University of North Carolina – Chapel Hill Tufts University University of Alabama Cases: University of North Carolina at Chapel Hill: Denial of Freedom of Association for Christian Fraternity State University of New York at Brockport: Speech Code Litigation Citrus College: Speech Code Litigation Shippensburg University: Speech Code Litigation Texas Tech University: Speech Code Litigation