Opinion/Editorial: Free Speech, University Codes Collide

January 4, 2015

By The Daily Progress at The Daily Progress

The important effort to combat sexual assault on campuses is colliding head-on with the First Amendment right of free speech.

So suggests the Foundation for Individual Rights in Education in its latest report on campus free speech.

“Under pressure from the U.S. Department of Education’s Office for Civil Rights, a number of universities, including Penn State and the University of Connecticut, have newly adopted unconstitutional speech codes under the guise of harassment policies,” the foundation says.

In an earlier agreement with the University of Montana, for instance, the federal government had set guidelines for verbal communications that were so vague they could have prohibited academic discussion of controversial works such as “Lolita,” according to FIRE.

Washington originally had hailed the agreement as a “blueprint” for other colleges.

The government now has backed away from some of its unconstitutional guidelines, the foundation reports, but that just leaves colleges across the country even more confused about what their responsibilities are under the federal mandate.

“No government regulation can trump the First Amendment,” said Samantha Harris, FIRE’s director of policy research.

We would add: No mere government regulation can trump the First Amendment. The U.S. Constitution enshrines the most basic, the most important of our rights. Even duly adopted laws must conform to the Constitution — much less regulations that are not even laws but merely administrative edicts.

Meanwhile, there’s good news/bad news in the rest of the report.

More than 50 percent of the 437 schools analyzed maintained policies that severely restrict students’ right of free speech.

Still, that’s less than it used to be.

The number of schools imposing restrictions on speech, and the severity of those restricts, has been declining for the past seven years.

That’s in part due to the efforts of groups such as FIRE, which educate schools about the First Amendment and fight for compliance with the Constitution.

Virginia, by the way, fares relatively well. Overall, only 31 percent of the commonwealth’s public and private schools earned a “red light,” the foundation’s worst rating. Virginia was cited in FIRE’s online interactive report as one of the best states in the nation for protecting campus free speech — although the foundation said the goal is for zero “red light” schools.

The University of Virginia had previously been named a “green light” school.

As UVa and other schools struggle to create a campus culture that condemns sexual assault, they deserve clearer and more achievable guidelines from Washington.

And that requires Washington to stop elevating political correctness over fundamental constitutional values. It requires, in fact, that federal bureaucrats reacquaint themselves with the First Amendment and remember why these protections were, and are, necessary.