Law Prof: Bureaucracy Hinders Freedom of Speech

By February 6, 2015

George Mason University (GMU) School of Law professor Todd Zywicki knows from personal experience that persuading an institution to revise its unconstitutional speech codes is not always an easy task. Zywicki shared some of what he’s learned from his advocacy over the years in a post on The John William Pope Center for Higher Education Policy’s blog on Wednesday.

Zywicki notes that although recent trends might lead readers to believe that campus censorship is imposed by politically motivated professors, its origins often lie elsewhere—in harder-to-reach places. For example, at GMU, he writes:

There is a separate office for that, called “University Life,” staffed with specialists who do not have academic appointments. It writes the rules, enforces them, and adjudicates violations of the rules of student conduct, including speech. Though it establishes some of the most important academic policies of the university, it effectively operates autonomously, resistant to inputs from the academic side of the house, even from well-intentioned law professors who would like to see their school live up to the highest ideals of the Enlightenment.

The over-bureaucratization of universities that Zywicki discusses is indeed a very significant factor behind the continued prevalence of speech codes on campus. As my colleague Azhar Majeed has explained,

[U]niversity administrations over-regulate students’ lives, often to absurd levels. It’s no secret that these administrators need to justify their often-inflated salaries somehow—and, all too typically, at the expense of the individual rights and liberties of students. Rather than make better use of their budgets to enhance students’ educational experiences, offer more and better courses, and otherwise bolster the curriculum, too many schools have chosen to bureaucratize their institutions … .

Thankfully, the GMU administration has been willing to work towards speech code reform, although as Zywicki notes, GMU receives a “yellow light” rating in FIRE’s Spotlight database, meaning that it maintains policies that could be used to punish or restrict constitutionally protected speech. This is an improvement from the university’s previous, “red light” rating, and FIRE and GMU have been working together over the past year to revise the university’s remaining yellow light policies. But given the history of GMU’s leadership in supporting controversial speech—the Law School Dean refused to disinvite a speaker in 2011, and the university’s president did the same in 2013—even GMU’s “yellow light” rating seems out of sync with the university’s support for free expression elsewhere.

But as Torch readers know, the vast majority of colleges and universities nationwide have similarly problematic policies—indeed, in most cases, worse ones. Perhaps unsurprisingly, faculty and students asking administrators for changes to protect their speech on campus frequently are ignored or offered justifications that betray a severe misunderstanding of public schools’ legal and moral obligations under the First Amendment.

That’s why FIRE is so grateful to the professors and students who work tirelessly to have their universities rescind speech codes that unlawfully punish expression. Zywicki, for example, worked with his colleagues on Dartmouth College’s Board of Trustees in order to earn the university a “green light” rating in 2005. To enlist FIRE’s help in changing your college’s speech codes, contact FIRE.

Check out the rest of Zywicki’s post.

Schools: Dartmouth College George Mason University Cases: Dartmouth College: Abolition of Speech Code