This article appeared in Cato Unbound.
2015 will be remembered as a year in which campus free speech issues took center stage, receiving extensive coverage in outlets like The New York Times, Wall Street Journal, The Atlantic, Slate, Vox, and Salon. Even President Obama voiced concerns about the lack of debate on college campuses.
For those of us who have been fighting campus censors for years, it’s hard not to ask: “Where has everyone been?”
My organization, the Foundation for Individual Rights in Education (FIRE), has been defending freedom of expression on campus since 1999. We can attest that free speech, open inquiry, and academic freedom have always been threatened on campus by one force or another, even long before we were founded.
Most people are familiar with the supposed heyday of political correctness of the 1980s and 90s, but there is a popular misconception that speech codes and censorship were defeated in the courts of law and public opinion by the mid-90s. In reality, the threats to campus speech never went away. Before examining what has changed to alarm the public—rightfully—about the state of open discourse in higher education, it’s important to note what hasn’t changed.
Speech Codes and Political Correctness Never Went Away
Scholars, including First Amendment expert Robert O’Neil, claim that politically correct speech codes were given a “decent burial” in the mid-90s. But despite being repeatedly defeated in court, speech codes became the rule rather than the exception on campus.
FIRE has been tracking and rating speech codes at hundreds of colleges and universities since 2006. Eight years ago, 75 percent of the institutions we surveyed maintained policies worthy of FIRE’s “red light” rating, meaning they clearly and substantially restricted freedom of speech. Since then, the percentage of schools with red light speech codes has steadily declined each year.
This good news is due, at least in part, to FIRE’s aggressive campaigning and lawsuits. Over the past few years, the number of campuses with red light policies decreased from 62.1 percent (2013) to 55.2 percent (2015). And, in FIRE’s 2016 speech code report, that figure is below 50 percent (49.3 percent) for the first time. Unfortunately, this may be only a temporary high-water mark; pressure from students and the federal government makes the resurgence of speech codes almost inevitable.
The past 15 years are rife with examples of speech-policing. There are the classic political correctness cases, such as the 2004 incident in which a University of New Hampshire student was evicted from his dorm for posting flyers joking that freshman women could lose the “Freshman 15” by walking up the dormitory stairs. In 2009, Yale University students were told they shouldn’t quote F. Scott Fitzgerald, and Bucknell University students were forbidden from handing out “Obama Stimulus Dollars.”
But many cases do not follow the “PC” mold and just involve old-fashioned abuses of power. Examples include the University of Wisconsin-Stout’s censorship of a professor’s “Firefly” poster, Central New Mexico Community College’s shutdown of a student newspaper for publishing a “Sex Issue,” and former Valdosta State University student Hayden Barnes’ unjust expulsion for protesting a parking garage (which led to an eight-year-long legal battle that finally concluded in 2015).
Federal Antidiscrimination Law as the Secret Engine of Campus Censorship
Some trends that long precede (and may explain) the current threats to campus free speech include the massive expansion of the bureaucratic class at universities, which officially began outnumbering the number of full-time instructors in 2005, and the rise of the “risk management” industry, which makes a fortune teaching universities how to avoid lawsuits by regulating almost every aspect of student life.
This brings us to the institution that is perhaps most responsible for exacerbating the problems of speech codes and hair-trigger censorship: the Department of Education’s Office for Civil Rights (OCR).
By the late 1980s, colleges were adopting “anti-harassment” codes that restricted protected speech. In the mid-1990s, the campus speech code phenomenon converged with the expansion of federal anti-discrimination law by the Department of Education’s Office for Civil Rights (OCR). OCR encouraged and even required harassment codes, and although its guidance tried to “balance” the need for these codes with the First Amendment, by the time FIRE was founded in 1999, universities were using the “federal government made me do it” excuse to justify even the most laughably unconstitutional speech codes.
In 2003, in perhaps its most redeeming moment, OCR issued a letter clarifying that it has no power to mandate that universities—public or private—police speech that is protected under the First Amendment. OCR explained that public universities, which are bound by the First Amendment, cannot ban merely offensive speech. And if private universities, which are not bound by the First Amendment (except in California through the Leonard Law), pass such speech codes, OCR made clear that they can in no way argue that the federal government forced their hand.
This message was never fully accepted by campus administrators, who wanted expansive speech codes, or by risk managers, who believed it was safer to discourage offensive speech than face a lawsuit. Nonetheless, the 2003 letter did help defuse an old excuse.
Unfortunately, the Department of Education under the Obama administration has been much more aggressive, granting itself new powers and redefining harassment in such broad language that virtually any offensive speech could be considered a matter of federal oversight.
In May 2013, OCR and the Department of Justice (DOJ) entered into a resolution agreement with the University of Montana that the agencies deemed “a blueprint for colleges and universities throughout the country.” This “blueprint” mandates an extraordinarily broad definition of sexual harassment: “any unwelcome conduct of a sexual nature,” including “verbal conduct”—i.e., speech. The blueprint holds that this conduct need not be “objectively offensive” to constitute sexual harassment. This means that if a listener takes offense to any sex- or gender-related speech, no matter how irrationally or unreasonably, the speaker has engaged in sexual harassment. Additionally, the final UM policy reviewed and approved by OCR and DOJ as part of their resolution agreement goes beyond policing sex-related speech by also prohibiting discriminatory harassment on the basis of 17 different categories, including “political ideas.”
Treating this resolution agreement as a “blueprint” puts public universities in an impossible situation: violate the First Amendment or risk investigation and the possible loss of federal funding.
OCR backed away from its characterization of the Montana agreement as a “blueprint” in a November 2013 letter to me. But unlike the clarification it issued in 2003, OCR has never communicated this to universities. As a result, as universities revise their sexual misconduct policies, they now include the blueprint’s definition of sexual harassment. There can be little doubt that the number of institutions doing so will only increase until OCR clarifies that it cannot require universities to adopt such a definition.
OCR is unlikely to forego unconstitutional speech-policing any time soon. In October, OCR announced that it would open a Title IX investigation into the University of Mary Washington after students filed a complaint about the school’s handling of sexist and racist Yik Yak posts. If this investigation leads to new federal “guidance” on colleges’ responsibility to police students’ social media activity, even more protected campus speech could be threatened.
What Has Changed: Students Using Their Free Speech to Limit Free Speech
Media coverage of the campus free speech crisis exploded in 2014 after a rash of “disinvitations”—student and faculty attempts to disinvite controversial speakers from campus, including former Secretary of State Condoleezza Rice and International Monetary Fund head Christine Lagarde.
Attention from the media has increased as more student-led efforts have gained popularity, such as demands for “trigger warnings” and “safe spaces,” and efforts to police so-called “microaggressions.” Critiquing PC culture is nothing new for conservative outlets, but even left-leaning authors at the New Republic, The Nation, New York Magazine, and The New York Times have been writing extensively about how these trends reflect very new, often alarming student attitudes about open discourse.
In my 15 years at FIRE, students have historically been the most reliably pro-free-speech constituency on campus. Students often showed more common sense than the professoriate, and certainly much more than the administrators.
But when stories about campus race-related protests inundated the news in the fall of 2015, I knew something had changed. It began when students at Wesleyan University demanded that the school’s primary student newspaper be defunded after it published a student op-ed that was critical of the Black Lives Matter movement. Shortly after, Wesleyan’s student government unanimously approved a resolution that will tentatively cut the paper’s printing budget by half.
Things escalated when I saw firsthand that Yale students were demanding the resignations of two faculty members for sending out an email that questioned whether universities should tell students what they should or shouldn’t wear as Halloween costumes. Then, just days later, student protests at the University of Missouri soured when protesters manhandled a student journalist.
These protests put First Amendment defenders and free speech advocates like me in a somewhat difficult position. Of course, I’m supportive of students exercising their free speech rights. Indeed, I find it refreshing that students have overcome their oft-diagnosed apathy towards serious social issues. However, it’s distressing that many of the protesters are using their free speech to demand limitations on others’ free speech. The irony of these demands was particularly prominent at the University of Missouri, where FIRE recently helped pass a state law making it illegal to limit free speech activities on public university campuses to tiny zones. This new law helped make the Mizzou students’ protests possible. But in a twist, the protesters created their own free speech exclusion zone to prevent media from covering the protest.
Now student protestors at at least 75 American colleges and universities have released lists of demands “to end systemic and structural racism on campus.” Although this is a laudable goal, a troubling number of these demands would prohibit or chill campus speech.
For example, many of the demands try to make the expression of racial bias, which is generally protected speech, a punishable offense. At Johns Hopkins University, protesters demand “impactful repercussions” for anyone who makes “Black students uncomfortable or unsafe for racial reasons.” Similarly, protesters at Georgia’s Kennesaw State University demand “strong repercussions and sanctions” for those who commit “racist actions and racial bias on campus.” And Emory University protestors want a bias response reporting system and sanctions for even “unintentional” acts or behaviors, including “gestures.”
Others go as far as to mandate that universities forbid “hate speech.” At Missouri State University, protesters demand that administrators announce a “commitment to differentiating ‘hate speech’ from ‘freedom of speech.’” Protesters at Dartmouth College want “a policy with serious consequences against hate speech/crimes (e.g. Greek house expelled for racist parties).” Similarly, student protesters at the University of Wyoming demand that the code of conduct be revised to hold students accountable for hate speech, complete with “a detailed reporting structure.”
The evidence that today’s students value freedom of speech less than their elders is not just anecdotal. In October, Yale University’s William F. Buckley, Jr. Program released a survey that found that 51 percent of U.S. college students favor campus speech codes, and that 72 percent support disciplinary action against “any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive.” These troubling results were echoed by a November 2015 global survey from Pew Research Center finding that a whopping 40 percent of U.S. millennials [ages 18–34] believe the government should be able to punish speech offensive to minority groups (as compared to only 12 percent of the Silent generation [70–87 year-olds], 24 percent of the Boomer generation [51–69 year-olds], and 27 percent of Gen Xers [35–50 year-olds]).
Thankfully, through old strategies and new ones, we can improve the climate for free speech on campus. Just one student or professor can protect free expression for thousands, or even hundreds of thousands, by filing a lawsuit against his or her school with the help of FIRE’s Stand Up For Speech Litigation Project. SUFS is undefeated so far and has resulted in seven settlements that send the clear message to institutions that it will be expensive to ignore their obligations under the First Amendment. What’s more, with every speech-protective judgment, it becomes harder for administrators to defend themselves with “qualified immunity,” which shields individuals from personal liability where the law isn’t clear.
Litigation might also be our best shot at forcing OCR to step back from its efforts to coerce institutions into adopting unconstitutional policies. Clearer and narrower policies than OCR’s May 2013 definition of “sexual harassment” have been struck down in court on numerous occasions. But until institutions see a real threat of an expensive judgment against them for overbroad harassment policies, they’ll continue to be motivated by the threat of OCR pulling their funding for what it seems to consider underbroad policies—i.e., colleges will err on the side of prohibiting protected expression.
And because money talks, alumni should withhold donations to institutions that break the law or renege on promises to respect students’ and professors’ rights. And of course, anyone can contact his or her legislators and ask them to support bills—like the ones FIRE helped enact in Missouri and Virginia—that ensure students may fully exercise their free speech rights on public campuses statewide.
These strategies may motivate schools to make quick changes, but free speech advocates know that long-lasting progress comes through cultural change. How do we teach a generation about the value of free expression when speech is too often presented as a problem to be overcome, rather than part of the solution to many social ills? This is our great challenge, and it must be faced with both determination and creativity if the always-fragile right of freedom of speech is to endure.