Speech Code Report 2012: Slowly but Surely, Green Lights Grow and Red Lights Recede

By January 10, 2012

FIRE’s sixth annual report on campus speech codes, Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation’s Campuses (web version / PDF version), was released today. From our perspective, there’s a lot to like in this year’s report-but there are worrying trends evident, too.

Let’s take the good news first. While the vast majority of the 392 colleges and universities analyzed still maintain policies that seriously infringe upon the free speech rights of students, this number has dropped for the fourth consecutive year. We’re now at 65% of schools surveyed receiving a red light for maintaining policies that clearly and substantial restrict free speech. That’s a 10 point decline from our 2008 report. It’s slow progress, but we’ll take it.

The other positive sign in this year’s report is the continuing increase in green light schools-that is, schools that do not maintain any policies that restrict student speech. We’re happy to report that the number of schools earning a green light has nearly doubled in the past four years, moving from just eight schools to 14. We’re very confident we’ll be adding some more soon, too, so look for this number to keep rising.

On to the not-so-good news. Again, the number one item on this side of the ledger is the fact that nearly two-thirds (65%) of schools still maintain speech codes that clearly and substantially restrict student speech, earning those institutions a red light. That’s an astonishingly high number, despite the progress we’ve made. Worse still, while public colleges and universities are required to uphold the First Amendment, the report shows that public institutions are no more likely than private schools to have policies that met the Constitution’s standards. That’s really shocking, if you stop and think about it; these schools are flagrantly violating the Constitution and decades of case law. Pretty astounding.

Continuing with the bad news, some of this year’s worst speech codes are real clunkers:

  • At Eastern Michigan University, sexual harassment includes any "inappropriate sexual or gender-based activities, comments or gestures."
  • Jackson State University in Mississippi prohibits as harassment "verbally abusive language by any person on University-owned or controlled property."
  • Angelo State University in Texas prohibits the use of "indecent, profane or vulgar language."

All three of these institutions are public universities bound by the First Amendment, too. I’m not sure how their general counsels figured these codes were acceptable, but I strongly recommend that each get their house in order, and quickly. I mean that-and if you’re reading this and happen to be an administrator or attorney for one of these schools, please contact me right away so we can work together to get your codes in line. It would be my pleasure to help!

Unfortunately, the federal regulatory guidance issued by the Department of Education’s Office for Civil Rights (OCR) last April only serves to compound the continuing problem of the high number of campuses enforcing unconstitutional or illiberal speech codes. That’s because a large number of these speech codes are in the guise of overly broad or vague harassment codes, and OCR’s recent guidance on the subject of campus harassment and bullying has been irresponsibly silent on the question of free expression as of late. For more on this point, see Greg’s op-ed in last Friday’s edition of The Washington Post, the open letter to OCR from FIRE and ten other organizations that accompanied it, and my response to a critic that explains OCR’s silence in detail.

But be sure to check out this year’s report for yourself! It’s packed full of information, examples, explanations, graphs, and charts, so there’s a lot more to consider than can easily fit in a blog post. What’s more, all of the policies cited in the report are accessible online in FIRE’s searchable speech code database: Spotlight: The Campus Freedom Resource. And if you’re a student, faculty member, or alum interested in drawing attention to your institution’s policies, you can easily do so by adding FIRE’s Speech Code Widget to your blog or website. Easy instructions for adding the widget are located here.