Samantha Harris, FIRE’s Director of Speech Code Research, has an excellent letter-to-the-editor in today’s edition of The Brown and White, Lehigh University’s student newspaper. Sam’s letter responds to student reporter Dani Todd’s article published last Friday about Lehigh’s red-light rating in FIRE’s speech code database, Spotlight: The Campus Freedom Resource.
Sam responds to comments by Professor Kathleen Olson, who inferred that FIRE makes no distinction between public universities, which are bound by the First Amendment, and private universities, which are not. Specifically, Professor Olson said that, "I think there is room, however, to differentiate between private universities, who have perfectly good reason to enact speech codes, and public universities, who are legally bound to not have speech codes."
In response, Sam writes:
As Olson herself admits, however, Lehigh openly presents itself as an institution that is committed to free speech. FIRE believes that students at a private university like Lehigh, which claims to value free expression, should not have fewer rights than their counterparts at Penn State or any of Pennsylvania’s other public colleges and universities.
Sam also addresses Prof. Olson’s additional comments about drafting speech policies:
Olson also states that if Lehigh wanted to revise its broad restrictions on free speech, "they could make them more specific, but you can’t think of every situation." Of course, Lehigh could also revise its broad restrictions on free speech by scaling them back dramatically to prohibit only speech that is unprotected by the First Amendment. It is sad and disturbing that Olson, who teaches journalism — a profession where free-speech rights are of the utmost importance — does not even consider the option of affording Lehigh students the same expressive rights to which they would be entitled at a public university and in society at large.
Then Sam discusses the specifics of those Lehigh policies to which FIRE objects:
Lehigh’s policies on harassment prohibit "unwelcome statements, jokes, gestures, pictures, touching, or other conducts that offend, demean, harass or intimidate." Its policies on electronic communication prohibit "sending annoying, threatening, libelous, or sexually, racially or religiously offensive messages through electronic means." Yet confronting views and expressions that are offensive — even deeply so — is part of being an adult member of a free society, which is why even profoundly offensive speech is fully protected by the First Amendment. Lehigh students should be insulted by the condescending attitude — implicit both in Olson’s comments and in the restrictive speech codes maintained by the university — that they are too weak to live with the freedoms granted to other Americans.
Prof. Olson also expresses a common objection to FIRE’s Spotlight rating and to FIRE’s work against campus speech codes: that speech codes as written are not a threat to students speech rights. Rather than rating schools on the policies they have on the books, Olson argues, FIRE should judge schools on whether they actually censor speech in practice. Sam writes, however:
[P]olicies prohibiting protected expression have a "chilling effect" on free speech, meaning that many students reading the policy will simply refrain from legitimate expression because they fear punishment. Therefore, even if Lehigh chooses never to enforce its speech codes, a substantial amount of speech is still suppressed.
Unfortunately, The Brown and White published an editorial concurrently with Todd’s article criticizing FIRE’s rating mechanism and echoing another of Prof. Olson’s misguided arguments: that FIRE doesn’t distinguish between public and private universities.
To be honest, I don’t know where this contention comes from, given that the distinction appears frequently throughout our website and foundational documents, especially in our materials relating to Spotlight.
First, in our "About Speech Codes" section of Spotlight, the first heading is titled "Public and Private: What is the Difference?" There we explain the legal difference between public and private institutions:
As state agents, all public colleges and universities are legally bound to respect the constitutional rights of their students. That the protections of the First Amendment apply on public campuses is well-settled law.
Private universities are not directly bound by the First Amendment, which limits only government action. However, the vast majority of private universities have traditionally viewed themselves—and sold themselves—as bastions of free thought and expression. Accordingly, private colleges and universities should be held to the standard that they themselves establish. If a private college advertises itself as a place where free speech is esteemed and protected—as most of them do—then it should be held to the same standard as a public institution.
Furthermore, private colleges and universities are contractually bound to respect the promises they make to students. Many institutions promise freedom of expression in university promotional materials and student conduct policies, but then deliver selective censorship once the first tuition check is cashed. They may not be bound by the First Amendment, but private institutions are still legally obligated to provide what they promise. Private institutions may not engage in fraud or breach of contract.
We also explain why we may choose not to rate some private institutions:
It is important to note, however, that if a private college wishes to place a particular set of moral, philosophical, or religious teachings above a commitment to free expression, it has every right to do so. The freedom to associate voluntarily with others around common goals or beliefs is an integral part of a pluralistic and free society. If a private university states clearly and publicly that it values other commitments more highly than freedom of expression, that institution has considerably more leeway in imposing its views on students, who have given their informed consent by choosing to attend.
Of course, that’s not a luxury we would ever afford a public university, bound as they are by the First Amendment, but we are careful to respect the freedom of association that private universities have to determine their own mission and policies. We only ask that they be consistent. If they promise free speech, they must deliver it in their practices and in the rest of their policies. "Free speech, but … " is not consistent with a promise of free speech.
We explain these distinctions again in the "Using Spotlight" section under the heading, "FIRE’s Speech Code Rating System."
Not only that, there is a functional distinction in how Spotlight is organized. We explain in the "Using FIRE’s Spotlight" section that we make a distinction between public and private institutions in how we categorize schools in the database. If you search for a particular state in Spotlight, the schools will be listed alphabetically in two categories: public and private. For example, see this Spotlight search for all institutions in Pennsylvania, including Lehigh. Additionally, each institution has the designation listed at the top of its Spotlight profile page (again, see Lehigh’s page here). The designation (public or private) links to the "Public and Private: What is the Difference?" section noted above.
Furthermore, this explanation of how we view the public/private distinction can be found throughout our literature. In FIRE’s Guide to Free Speech on Campus, we have four sections devoted to discussing students’ rights on private university campuses (pp. 49-63) and how those rights differ from the rights of students at public universities. We write:
[I]t is vitally important to understand both what the Constitution does and does not protect. The First Amendment of the Constitution of the United States protects individual freedoms from government interference. It does not, as a rule, protect individual freedoms from interference by private organizations, such as corporations or private universities. For example, while the government could never insist upon allegiance to any particular political philosophy or any particular church, private organizations often make such allegiance a condition of employment (the local Democratic Party, for example, is obviously free to require its employees to be registered Democrats, and the Catholic Church is obviously wholly free to employ only Catholics as its priests). Private organizations such as political parties and churches have freedoms denied to government—the freedom to violate liberties that would be constitutionally protected if the issue were government interference. Indeed, the Constitution protects the free exercise of those liberties because we could not have a free and pluralistic society if private organizations did not enjoy this freedom of association around shared beliefs and practices.
Private universities, then, are free, within the law, to define their own missions, and some choose to restrict academic freedom on behalf of this or that religious or particular agenda. (pp. 49-50)
This explanation appears in various forms in FIRE’s four other Guides to student rights: FIRE’s Guide to Religious Liberty on Campus (pp. 21-27, 42-59), FIRE’s Guide to First-Year Orientation and Thought Reform on Campus (pp. 19-23), FIRE’s Guide to Student Fees, Funding, and Legal Equality on Campus (pp. 17-19), and FIRE’s Guide to Due Process and Fair Procedure on Campus (pp. 35-51).
Fourth, nearly every time we name a private university as our Speech Code of the Month, we point out that it is a private university, but that it promises freedom of speech to its students and thus is contractually bound to that promise, and then we discuss how its policies violate that promise. We will usually say explicitly, "As a private university, X University is not bound by the First Amendment, but it advertises itself as a place that protects free speech" and we link and quote the relevant policy.
Fifth, we dedicate a section of each edition of our annual Spotlight on Campus Speech Codes report to explaining the distinction between public and private universities, and in each report we have separate graphs depicting ratings for each designation.
The claim that "FIRE doesn’t distinguish between public and private universities in its reports" is so thoroughly and demonstrably erroneous that it makes us think that neither Professor Olson nor The Brown and White made any attempt to determine whether this claim was true. They just said so.
The Brown and White makes the argument that it is "hard to take too much stock in a report" that uses its "harshest rating" for a school that has only one policy that "clearly and substantially restricts free speech." Well, if that school is public, that one policy could land the school on the losing side of a federal lawsuit. "Clearly and substantially" unconstitutional is unconstitutional. Period. And if a private university promises its students freedoms tantamount to those they would have at a public institution, then one policy that "clearly and substantially" restricts those rights is, well, a clear and substantial violation of that promise.
That one policy, in order to be rated red light, "clearly and substantially" restricts wide swaths of students’ speech. It would be ludicrous for FIRE to insist that universities must have at least two or three or more "clear and substantial" restrictions of students’ rights before labeling them red-light institutions. One is enough to (can I say this enough?) "clearly and substantially" cripple students’ rights.
The Brown and White does go on to applaud what "FIRE is trying to accomplish with its free speech reports." Now that we have corrected The Brown and White‘s misunderstanding of FIRE’s methodology and policy regarding public vs. private schools, we hope that they’ll join us in asking Lehigh University to reform its policies. To help the university out, we’ll happily send a copy of our new pamphlet "Correcting Common Mistakes in Campus Speech Policies" to The Brown and White, Professor Olson, and the Lehigh administration. To ensure that there is no confusion, they can read about FIRE’s public/private distinction in the first paragraph.