Last month, FIRE released its 2014 report on campus speech codes, which revealed that 59% of the 427 colleges and universities analyzed maintain policies that clearly and substantially restrict constitutionally protected speech. When quizzed recently by student journalists about their institution’s speech codes, administrators at “red light” institutions Johns Hopkins University (JHU) and Grand Valley State University (GVSU) protested their ratings, arguing that their schools value and protect free expression. But these administrators should remember that written policies prohibiting protected speech still threaten free expression regardless of whether a school’s current administration pledges to uphold First Amendment principles.
Though JHU is a private university, its student handbook declares the school to be “a forum for the free expression of ideas.” Students should, therefore, expect to be able to speak as openly on JHU’s campus as they would at a public campus. But JHU’s several yellow and red light policies prohibit a wide range of speech that would be protected by the First Amendment on a public campus, including “offensive” emails and “rude” behavior. These policies simply cannot be reconciled with JHU’s statement that the campus is a forum for free expression.
Unfortunately, some at JHU do not see the threat these policies pose to free speech on campus. Student newspaper The Johns Hopkins News-Letter relayed comments from students and administrators after FIRE’s Spotlight on Speech Codes 2014 was released:
“I was surprised because I feel Hopkins is pretty accommodating to free speech,” Vice Dean for Undergraduate Education Steven David said. “I know in terms of visitors that we’ve had here … Rick Santorum, a very ultra-conservative guy, was given very respectful treatment here.”
“I would say that that’s surprising,” freshman Adam McCan said. “I’ve never really felt like I’ve had to censor myself.”
Still, in looking at the school’s policies restricting “annoying,” “profane,” or “offensive” emails, McCan acknowledged that “the word ‘annoying’ is very vague.”
David told the News-Letter that he is not sure if the policies to which FIRE objects are being enforced. This does not allay our concerns. Students will self-censor in an attempt to comply with written school policies, whether administrators plan on enforcing them or not. Further, there remains the possibility for selective enforcement of the policies against ideas with which administrators disagree. And unless these written policies are changed, future classes of administrators can easily use them to punish clearly protected speech. Besides, if the school does not plan on enforcing the policies, why not simply get rid of them?
Provost Robert Lieberman told the News-Letter that despite FIRE’s ratings, “Johns Hopkins has a strong and enduring commitment to values of academic freedom and the free exchange of ideas, one that stretches to its founding.” But if JHU truly supports the free exchange of ideas, it must revise its policies to make that clear to its students and faculty. David remarked that “[i]t would be useful to have a dialogue with FIRE,” and we agree. FIRE is always happy to work with schools to write policies that protect students’ safety while respecting their First Amendment rights.
GVSU, on the other hand, is a public university bound by the First Amendment, but it nevertheless places significant restrictions on student speech. It has several “yellow light” speech codes—policies that are vague or broad enough that they can easily be abused to punish protected speech—but its most worrisome provision is its red light “Bias Incident Protocol Policy.” The policy, meant to protect “the health, safety, [and] welfare” of the community, instructs students to “report all bias incidents—even those intended as jokes.” The policy further clarifies that bias incidents can include “expressions of hate or hostility” and language that makes someone feel “disrespected,” although the vast majority of such speech is protected by the First Amendment.
Vice Provost for Student Affairs and Dean of Students Bart Merkle spoke to student newspaper the Grand Valley Lanthorn in defense of the school’s policies, calling the bias reporting provision “reasonable.” Bias incidents, he said, “are usually related to hateful speech.” But as we frequently reiterate here on The Torch, “hate speech” is not one of the few and narrowly defined categories of speech unprotected by the First Amendment. Subjecting a student to an investigation based on speech just because it is “hateful” is, therefore, inconsistent with GVSU’s legal and moral obligations as a public institution.
Merkle asserted that GVSU “do[es]n’t censor speech.” Vice President for University Relations Matt McLogan told the Lanthorn that “there is no free speech issue on campus” and that the university abides by the First Amendment, which “entitles people to express views and supports those who may not agree with those views and other contrary opinions.” But until GVSU revises its policies so that they no longer promise an “investigative report” on speech that is clearly constitutionally protected, student and faculty speech is in danger of being punished.
This problem is further compounded by GVSU’s recent response to a Lanthorn article questioning whether donors inappropriately influenced the school’s decision-making. In January, Lanthorn Editor-in-Chief Lizzy Balboa was contacted by three administrators (allegedly including the president of the university) who told her that she should recant the editorial and thank the school’s donors, or decline her scholarships so that someone more supportive of donors can benefit from them. This action, like GVSU’s broad written policies, is likely to dissuade students from fully exercising their free speech rights.
These universities are far from the only schools to misunderstand their moral and legal obligations when it comes to protecting free speech on campus. But particularly because administrators have shared their concern about FIRE’s ratings, we invite these schools to work with us to improve the climate for free speech on campus.