Universities trash 1st Amendment

December 7, 2006

Hundreds of major private and public universities across the United States routinely trash the First Amendment and violate their students’ rights to free speech, a new study has discovered.

The assessment by the Foundation for Individual Rights in Education spotlights the speech codes and gave the bad news to the nation “on just how pervasive and how onerous restrictions on speech are at America’s colleges and universities.”

It found, for example, at Jacksonville State University in Alabama, students can be punished if they “offend” anyone while they are on university land, and at the University of Mississippi, “offensive language is not to be used.”

At Missouri State University, as WND has reported, one student had her degree threatened and she was grilled in a closed session with faculty members on her personal religious beliefs for several hours because she refused to sign a school-dictated letter supporting “gay” adoptions, a position that violated her religious beliefs.

Greg Lukianoff, the president of FIRE, said the “Spotlight on Speech Codes 2006: The State of Free Sppech on Our Nation’s Campuses,” showed the overwhelming majority of universities “explicitly prohibit speech” that outside the borders of the campus is protected by the First Amendment.

Virtually all of those 229 universities that are public are subject to court challenges to the constitutionality of their policies, and those schools that are private generally would be found to be violating their own stated free speech perspectives because of their limits, FIRE said.

“Universities have been quietly implementing these codes slowly over the course of years,” Lukianoff told WND, “until we’ve ended up with these. The ludicrous result is that the majority of institutions have codes that would be laughably unconstitutional by any constitutional standards.”

“There is a common misconception that ‘speech codes’ are a thing of the past – a relic of the heyday of political correctness of the 1980s and 90s – but the public needs to know that speech codes are perhaps more pervasive and restrictive than ever,” he said.

The study looked at the 100 “Best National Universities” and the 50 “Best Liberal Arts Colleges” as listed by U.S. News & World Report, as well as another 184 major public universities.

  • More than 73 percent of public universities surveyed maintain unconstitutional speech codes, despite court decisions striking down similar policies.
  • Most private colleges, which are not bound legally by the First Amendment, in fact explicitly promise free speech rights to students but then ignore that grant of rights.
For example, Boston University promises “the right to teach and to learn in an atmosphere of unfettered free inquiry and exposition.” But it prohibits speech that the First Amendment would protect, such as “annoying” electronic communications, or opinions that do not “show respect for the aesthetic, social, moral, and religious feelings of others.”

Most of the schools talk about free speech, but then formalize limits on speech, the report found. For example, at Macalester College, one doesn’t even need to speak to violate the speech restrictions, because there’s a ban on “speech that makes use of inappropriate words or non-verbals.”

And Furman bans any “offensive communication not in keeping with community standards.”

Thoughts and attitudes also are under the careful control of the school managers, because at the University of North Carolina-Greensboro, “disrespect for persons” is banned.

The solutions cited by the report include continued efforts by FIRE’s Speech Codes Litigation Project, which has challenged several schools, including Texas Tech, where 28,000 students were allowed a 20-foot diameter “free speech” gazebo where their speech wasn’t formally regulated by the school.

Public exposure also appears to be effective, FIRE’s report noted, since “neither our nation’s courts nor its people look favorably upon speech codes or other restrictions on basic freedoms.”

Al Harris, a spokesman for Jacksonville State, said Dr. Joe Delap, the school’s associate vice president of academic and student affairs, had said the word “offend” was an anachronism and recently had been ordered to be replaced by the word “abuse.”

“If you’re abusive, that’s an actionable legal term,” Harris said.
Lukianoff, who runs the nonprofit educational foundation that works on behalf of individual rights, due process, freedom of expression and academic freedom on American campuses, said speech codes routinely lose in court whenever challenged.

He noted that court precedents have found that speech that offends and might be rude unquestionably is protected by the First Amendment, and many universities try to get around the issue by saying they only ban “harassment,” but then define harassment as anything that makes someone uncomfortable.

Harassment, in fact, has been defined by courts as being “extreme and usually repetitive behavior – behavior so serious that it would interfere with a reasonable person’s ability to get his or her education.”

The U.S. Office for Civil Rights concluded, “Some colleges and universities have interpreted OCT’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCT’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

But at Cal Tech, “harassment” is any speech that “demeans … another” and Princeton, the guilty doesn’t even have to be aware that he or she is harassing someone, because the violation can be “intentional or accidental.”

School policies are set up to be so tolerant, Lukianoff said, that they are “utterly intolerant of any opinion it deems inappropriate.”

There are several reasons for the limits, including the general feeling universities must control “every aspect of a student’s life,” but also to create a defense for legally frivolous harassment lawsuits, FIRE said.
“Harassment doesn’t happen just because someone’s offended,” said Lukianoff.

The study formally assigned the various schools “red light,” “yellow light,” or “green light” classifications, depending upon their policies.
Green light schools had no serious speech impairments and yellow light schools had questionable policies.

“A school is rated as a ‘red light’ if it has at least one policy that both clearly and substantially restricts freedom of speech. A ‘clear’ restriction is one that unambiguously infringes on protected expression,” the report said.

Of all the schools assessed, 229 were given “red light” ratings, 91 “yellow lights,” and eight a “green light.” Half a dozen were not rated for several reasons.
Of the 230 public universities, 73 percent were given red light ratings, while 58 percent of private schools got the same. Only two percent of public schools got a green-light rating.

The report said simple efforts sometimes will correct a problem.

“Universities are frequently unwilling to defend these policies in the face of public criticism,” it said.

Just over recent months, for example, Appalachian State administrators changed their policies on “insults.” And University of Nevada-Reno officials adopted a new policy opening the campus to free speech, FIRE said.

And, as a last resort, unconstitutional policies at universities, a “national scandal,” according to FIRE, can be challenged in court, the report said.