In a thoughtful interview (subscription required) with Amy Gajda, author of the forthcoming book The Trials of Academe: The New Era of Campus Litigation, the Chronicle of Higher Education‘s Peter Schmidt asks a good question: What’s making colleges more prone to lawsuits?
Gajda identifies several contributing factors to the rise of campus litigation: rising job insecurity for faculty; a sense of detachment and distrust between administrators, faculty and students; the Supreme Court’s gauzy embrace of "academic freedom" as a legal concept; the increased willingness of courts to intervene in campus decision-making as a result of legal challenges brought during the civil rights movement.
But while all of these developments likely play some role in the spike in collegiate lawsuits, I was surprised to see an obvious contributing factor left unnamed: the fact that public colleges and universities continue to shamelessly break the law when it comes to speech on campus.
That so many of our nation’s public universities are scofflaws when it comes to the First Amendment is no longer news—after all, FIRE has been fighting against campus censors for a decade now, and while we’ve made great progress, it doesn’t look like we’ll be hurting for new cases anytime soon. But perhaps even more shocking than individual incidents of wanton campus censorship, like Hayden Barnes’ infamous case at Valdosta State University, is the fact that a recent FIRE report revealed that 77% of public universities continue to maintain policies that unconstitutionally restrict student speech.
That’s a jaw-droppingly large percentage of public universities that are vulnerable to a First Amendment lawsuit, and it’s unforgivable—particularly in light of the unbroken series of successful constitutional challenges to speech codes exactly like the ones still on the books at so many public universities. There’s a reason that Greg titled an article he wrote last year "Campus Speech Codes: Absurd, Tenacious, and Everywhere": absurd, because these codes restrict protected speech; tenacious, because they somehow survive despite over two decades of defeat after defeat in federal court; and everywhere, because they’re still in such widespread use.
At some point, one naturally starts to wonder why public universities cling so vigorously to such obviously unconstitutional codes. After all, that the First Amendment applies on public campuses is settled law, so university administrators who enforce an unconstitutional code and violate a student’s First Amendment rights therefore risk losing their Eleventh Amendment qualified immunity, leaving themselves potentially personally liable for damages in federal court. Why don’t administrators just observe the first rule of holes: when you find yourself in a hole, stop digging!
Interestingly, I think a significant part of the answer can be found in another one of the factors Gajda discusses in relation to the rise in campus litigation: namely, the exaggerated "defensive posture" many institutions have adopted to avoid exposure to liability. As Azhar explained yesterday, institutional risk aversion on campus too often means that universities seek to limit the possibility of student offense at the expense of the First Amendment. That’s why public university administrators make mistakes like importing strict harassment standards that curtail protected speech from the private workplace on to campus, despite the fact that the Supreme Court has explicitly announced an exacting legal standard for peer-on-peer harassment in the educational setting and that private employees and students at a public universities are engaged in vastly different enterprises when it comes to free expression. Another example of this hyperactive risk aversion involves student speech that has anything to do with guns—no matter how protected, the mere mention of guns is too often a provocation for censorship. In both ways, the universities’ defensive posture oppresses campus speech and invites litigation rather than preventing it.
So when Gajda suggests that one way to decrease collegiate litigation would be to "build a stronger sense of community on campus," I think she’s on to something. Any steps toward increased dialogue between students and nervous, quick-to-censor administrators would likely be constructive. But I think that’s only a piece of the answer—even more helpful, from FIRE’s perspective, would be to see public college and university administrators reform their policies affecting campus speech to comply with the First Amendment, by which they are of course legally bound.
At any rate, Gajda’s interview was certainly interesting, and I urge those interested to check it out. We here at FIRE look forward to her forthcoming book.