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Private University Students: Keep Faith and Fight Speech Codes

By July 10, 2014

Konrad Thallner is a FIRE summer intern.

Since learning of my internship at FIRE, many of my friends and peers at private colleges and universities across the country have expressed an unfortunate degree of confusion, misunderstanding, and pessimism regarding the options at their disposal when they encounter an oppressive speech code. These students have expressed feelings of helplessness after making the decision of where to attend college based on promises of a “liberal education” or “viewpoint diversity,” only to be surprised with the lack of dedication to such principles once they get to campus.

Most students’ hesitation to fight speech codes seems to stem from the knowledge that private colleges and universities, clearly not government actors, are not legally bound by the provisions of the First Amendment. Despite this fact, private school students need to know that there are other approaches, legal and ethical, that can be just as effective when fighting a repressive speech policy.

The principles of basic contract law, for example, maintain that colleges and universities must live up to the promises they make to their students in the form of handbooks, policies, web pages, and other official materials. Though this area of law as it pertains to university policies differs among states, the general rule is that one may not advertise one’s product in one way but deliver something wholly different. Therefore, institutions of higher learning that publish documents championing an environment of “free expression” and “academic freedom,” only to abandon those statements when regulating student expression, may be open to a contractual challenge.

But legal action is not the only avenue for change. Staking out moral arguments for change at a private college can sometimes be a better starting point for concerned students. One can convincingly argue that administrators are bound by principles of honesty and decency to either live up to their publicized promises or to stop advertising a campus environment that is not true to reality. Is a school that promises free expression not morally obligated to protect and preserve the ideals of open debate and unfettered discourse that are fundamentally important to intellectual development and community growth? Such ethical appeals are strong weapons in a student’s arsenal and can often be just as compelling as any legal challenge.

For students ready to take on oppressive speech codes, check out the following tips and resources to help maximize your chances of success.

Learn about your school’s policies. It is vitally important to educate yourself as much as possible on the specific language and enforcement history of your institution’s speech codes before taking action. FIRE’s Spotlight database includes hundreds of institutions across the country and points to the speech codes that are problematic. Consult FIRE’s Correcting Common Mistakes in Campus Speech Policies guide for help understanding the policies you are concerned with, their free speech issues, and ways they could be improved.

Inquire Internally. Students should meet with appropriate university administrators to ask about speech regulations that may hinder free expression. Suggestions for these meetings were detailed in a previous FIRE blog post, but as a general rule, be polite, professional, and prepared. Ask administrators for their justification of the speech code’s existence and whether they think (or know) it is in contrast with the institution’s stated missions and promises. Come to these conversations with printed materials to point out the exact contradictions that may exist so that you can show you are dedicated and serious enough to have done your homework.

Get help. Support from other members of the campus community will increase the strength of your activism. Use student publications, posters, flyers, personal networks, and social media sites to educate others on why a restrictive speech code is dangerous and how the campus would from benefit its change. Meet with any liberty-loving professors, student groups, or clubs to see who has an interest in supporting you—the more diverse the voices speaking out are, the more the school will feel compelled to respond. It is imperative that when you inform others about the problem, you also tell them the specific action they should take next—whether it is to write a letter, post online, sign a petition, demonstrate, call, etc.

Appeal to the court of public opinion. For most colleges, even the prospect of media or public scrutiny will stir fears of decreased applications, fewer donations, and slipping rankings that can result in an administration’s quick change of heart. Contacting outside or local media outlets can be a great way to begin. Alumni associations of Greek organizations, student newspapers, or other clubs with interested alumni could also provide a powerful tool for ensuring outside voices are discussing the speech restrictions on your campus. Reaching out to FIRE, of course, can also be very beneficial.

When pursuing the revision of a problematic speech code, your ultimate goal should be to change the minds of those in power such that your goal—changing the code to enable a significant amount of free speech—is more advantageous than maintaining restrictive policies and dealing with the consequences of continued opposition. To the friends at private colleges and universities who expressed feelings of uncertainty and defenselessness to me, I direct your attention to an inspiring message from FIRE’s Guide to Free Speech on Campus: “Do not feel fatalistic, and do not feel alone. Liberty is a wonderful thing for which to fight.”