A Florida University's Policy Against The Passion. In the fall of 2004 the Christian Student Fellowship at a Florida public college had pushed the administration too far: the CSF wanted to show Mel Gibson's The Passion of the Christ at their next meeting. The movie, which portrays the crucifixion of Jesus of Nazareth, was hardly an unknown quantity—it remains the highest grossing foreign language film in US box office history and the highest grossing religious film of all time worldwide. But it was not so popular with the administration of Indian River Community College (IRCC), which claimed that the students could not show it because it was "controversial" and "R-rated."
When the administration threatened further draconian measures against the Christian group, they contacted the Foundation for Individual Rights in Education (FIRE) for help. We at FIRE receive hundreds of requests for help each year, and, sadly, few abuses of college students' rights surprise us anymore, but this ban seemed so petty and mean-spirited that we were confident it would be quickly resolved. Instead, the college stubbornly stood by its alleged blanket code against R-rated movies. This argument was outrageous on its own; college students range from teenagers to retirees, and the lofty mission of higher education-the search for truth—would be, to say the least, hampered by a content ceiling of PG-13. But what made this case so classic, was the administration's stunning double standard. Not only did our research show that the college had sponsored the showing of R-rated movies in the previous year, at virtually the same time the school was banning The Passion it was hosting a production that included a skit called "Fucking for Jesus"—a piece about masturbating to an oil painting of the Christian messiah.
While FIRE was exceedingly clear that the both the skit and The Passion were fully protected expression and could not be banned on a public college campus, the school's double standard was jaw-dropping. After months of public pressure from FIRE the college relented, ceased its punitive actions against the CSF and allowed them to show The Passion. This case is far too typical in FIRE's experience and reveals how speech policies are used to silence certain disfavored views on campus, while seriously misinforming students about their basic speech rights. It also highlights the fact that, despite some reports that speech codes died off in the 1990s, these codes remain the rule rather than exception on America's campuses.
FIRE and Campus Speech Codes. One can be forgiven for thinking that campus speech codes are a thing of the past. After all, there were no fewer than five legal decisions from 1989 to 1995 overturning such codes as unlawful or unconstitutional. Sadly, however, speech codes did not disappear in the 1990s; in fact, they increased in number even as it became painfully clear that they were both unlawful and unwise.
The Foundation for Individual Rights in Education (FIRE) was founded to address the abuses of fundamental liberties on campus, including the shocking tenacity and pervasiveness of campus speech codes. FIRE was founded by Alan Charles Kors, a conservative-leaning libertarian, and Harvey Silverglate, a liberal-leaning libertarian. The organization has proudly maintained its non-partisan nature, defending the free speech rights of everyone from conservative student newspapers to liberal ones, from evangelical Christians to those who mock Christianity, from devout Muslim students to those who are highly critical of Islam, and from Ward Churchill to those who protest Ward Churchill.
While FIRE has never made a secret of that fact that some views—social conservatism, religious orthodoxy, and politically incorrect satire—are more likely to be punished on the modern campus rather than others, speech codes pose a special threat to the campus "marketplace of ideas" itself.
FIRE is sometimes wrongly characterized as a "free speech absolutist" organization, implying that we see no such thing as a "reasonable" restriction on free speech. While we take this label with a certain amount of pride, it is not quite correct. FIRE tends to agree with the limitations that the Supreme Court has recognized concerning First Amendment rights. This is sometimes called the "categorical" approach, which means that, generally speaking, outside of a limited number of categories, speech is presumed to be free. These categorical exceptions include libel, placing someone in fear of bodily harm or death (true threats), hardcore pornography (obscenity), inciting people to imminent lawless action, child pornography. The speech codes that have arisen over the last three decades, however, bear little or no resemblance to these narrow limitations and, by their terms, can sweep in even the most run of the mill expression. Such broad policies, of course, cannot be enforced across the board, lest virtually any speaker be reduced to silence—instead they are often used to discourage people with the "wrong" views. Fighting campus speech codes is, therefore, not to agitate for anarchy; rather, it is to fight against a uniquely un-American form of totalitarianism, in precisely the setting where we need discussion to flow the most freely.
FIRE defines a speech code as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large. This basic definition is necessary because colleges rarely label such restrictions as "speech codes" in their handbooks. Instead, they are referred to by many other names:
"Speech zone" policies like the one at Texas Tech University which limited the free speech activities of 28,000 students to only one twenty foot wide gazebo; "student rights and obligations" policies like Texas A&M University's code, which prohibits students from violating others' "rights" to "respect for personal feelings" and "freedom from indignity of any type"; computer use policies like the one at Northeastern University in Boston, which prohibits students from using campus e-mail accounts or servers to send any message that "in the sole judgment of the University" is "annoying" or "offensive"; "diversity" policies like the one at Ohio State University, which warns, "Words, actions, and behaviors that inflict or threaten infliction of bodily or emotional harm, whether done intentionally or with reckless disregard, are not permitted" (emphasis added).
But the most common type of speech code comes in the form of absurdly overbroad "harassment policies." For example, Western Michigan University's harassment policy actually bans "sexism," which it defines as "the perception and treatment of any person, not as an individual, but as a member of a category based on sex." The University of Iowa, meanwhile, defines sexual harassment as something that "occurs when somebody says or does something sexually related that you don't want them to say or do, regardless of who it is." Davidson College's Sexual Harassment Policy prohibits the use of "patronizing remarks," and, heartbreakingly, goes on to explicitly prohibit "comments or inquiries about dating."2
In 2007 FIRE published its second official report on the state of speech codes on the nation's college campuses. As will be detailed later in this article, we found that 75 percent of schools surveyed had some form of highly restrictive speech code and that only a handful had policies which were free of any potentially threatening speech restrictions.
Our colleges and universities are institutions that rely on an open exchange of ideas in order to function correctly. When that candor is limited by such absurdly broad policies, the marketplace of ideas becomes distorted. Courts understand this, the Supreme Court has understood this for over a half a century, and even campus administrators, university presidents, and professors often claim to understand this. The question then becomes, if campus speech codes are so clearly harmful and universally reviled, why are they still so pervasive? Where did they come from in the first place?
A Brief History of Speech Codes
The Rise of Speech Codes. The rise of modern speech codes took place in the 1980s and coincided with a decidedly positive development nationwide: increased representation in higher education for women, minorities, and openly gay individuals. This development brought new tensions along with it, and an increase in racially charged incidents and confrontations—ranging from the criminal to the relatively minor—was reported at campuses across the country.3 Some commentators have characterized the rise of campus speech codes as the direct, natural, and understandable—if misguided—response of colleges to such incidents.4 Meanwhile, other commentators have asserted that the rise of speech codes in the 1980s was more closely related to the growing dominance of the left in higher education, and to their belief that it was their function to reengineer society, starting with students' interior beliefs and moving outward.5 Another possibility posited by some is that speech codes were largely a tool for quelling campus unrest and guaranteeing to college presidents and administrators "peace on their watch."6
Given the remarkable overbreadth of the earliest codes, it is difficult to imagine that the intent of speech codes was limited to punishing only the most threatening racist speech, such as the hurling of racial epithets. For example, the speech code at the University of Michigan—one of the earliest codes—defined harassment as including:
- "You comment in a derogatory way about a particular person or group's physical appearance or sexual orientation, or their cultural origins, or religious beliefs."
- "You exclude someone from a study group because that person is of a different race, sex, or ethnic origin than you are."
- "You display a confederate flag on the door of your room in your residence hall."7
Meanwhile, the University of Connecticut banned the "use of derogatory names, inappropriately directed laughter, inconsiderate jokes, anonymous notes or phone calls, and conspicuous exclusions from conversations and /or classroom discussions..."8 These represent just two of the dozens of speech codes that cropped up around this time period, many of which reflected intentions clearly beyond addressing mere 'civility,' and delved into more sweeping, mandated social engineering.9
The country was paying attention to the rise of speech codes and in May of 1991, President George H. W. Bush warned of "free speech under assault throughout the United States, including on some college campuses...And in their own Orwellian way, crusades that demand correct behavior crush diversity in the name of diversity."10 Shortly before President Bush's speech, Henry Hyde introduced a congressional bill called the "Collegiate Speech Protection Act of 1991" as an amendment to the 1964 Civil Rights Act.11 The act did not pass, however, perhaps because it was not seen as necessary; after all, by that time speech codes were already being struck down by the courts.
In 1989, in Doe v. Michigan, a federal district court overturned Michigan's speech code; then in 1991, a federal court overturned Connecticut's afore mentioned policy in an unreported opinion.12 In another 1991 case, a court overturned the University of Wisconsin at Madison's speech code, which forbade students from making comments that would "demean" others on the basis of a number of different categories, including race, gender, and religion.13 Then in 1992, the U.S. Supreme Court handed down a decision that, while not directly concerning speech codes, demonstrated that such codes could not survive constitutional scrutiny.14
1993 should have put the final nail in the campus speech code coffin. For the first time, a campus speech code was overturned in a published federal appellate court decision.15 That same year, the University of Pennsylvania became the target of national and even international ridicule for attempting to discipline a student for calling other students "water buffaloes."16
In 1995, the fight against speech codes escalated to a new level when a California court struck down Stanford University's speech code.17 This case is exceptional because Stanford is a private university and thus not directly bound by the First Amendment. The court was acting under the power of the state's new "Leonard Law," which extended the free speech protections of the First Amendment to private college campuses in California.
Add to this unanimous tide of victories18 clear Supreme Court precedent like Texas v. Johnson,19 and the already well developed case law regarding the rights of college students,20 and it is perhaps no surprise that some commentators like Robert O'Neil reported:
[The R.A.V. decision] seemed to sound the death knell for most campus speech codes...[college administrators] read a clear message, that few codes drawn along such lines could survive the Supreme Court's broader First Amendment ruling. Many colleges and universities either repealed speech codes or allowed them to languish...most of the codes were either given a decent burial by formal action or were allowed to expire quietly and unnoticed.21
The Rumors of Campus Speech Codes' Death Are Greatly Exaggerated. But speech codes didn't die; rather they thrived.21 FIRE was founded in 1999 and soon began the preliminary stages of developing what would become FIRE's Spotlight speech code database. In 2003, FIRE initiated our Speech Codes Litigation Project. While FIRE is not a litigation group, we began the process of partnering with lawyers, as well as identifying suspect codes and potential plaintiffs.
The first lawsuit, filed in April 2003, targeted Shippensburg University's code, which was then overturned by a federal court in Bair v. Shippensburg.23 The second lawsuit was filed by ACLU attorney Carol Sobel against California's Citrus College's speech code and speech zone policies; the case settled in just over two weeks. The next lawsuit was filed against Texas Tech University in cooperation with the Alliance Defense Fund, a Christian litigation group. Under pressure from FIRE, Texas Tech had already greatly expanded its "speech zone" from the 280 square feet of the "free speech gazebo" to nine acres. The university, however, still maintained unacceptable restrictions and in Roberts v. Haragan, a federal court held that it could not maintain a speech code that banned, among other things, "insults," "ridicule," and "personal attacks."24
At virtually the same time as the Shippensburg decision, the Office for Civil Rights of the Department of Education issued a letter of clarification to all of the colleges and universities under its jurisdiction (virtually every university in the country). The letter addressed the tendency on the part of universities to blame OCR regulations for the fact that so many of them maintained absurdly overbroad harassment codes. Gerald A. Reynolds, Assistant Secretary for OCR, wrote:
I want to assure you in the clearest possible terms that OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution... Thus, for example, in addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR.25
With regard to private colleges, Reynolds wrote:
Because the First Amendment normally does not bind private institutions, some have erroneously assumed that OCR's regulations apply to private federal-funds recipients without the constitutional limitations imposed on public institutions. OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.26
OCR thus made it clear that no federal regulation could require banning constitutionally protected speech. Momentum seemed to be gaining. In February 2004, the Association for Student Judicial Affairs, an umbrella group of college administrators, issued a statement27 that "urge[d] public institutions of higher education in the U.S. to ensure that their policies, rules, and procedures protect students' freedom of speech and expression as guaranteed by the U.S. Constitution," and promised the aid of ASJA members in helping to bring campus codes into compliance.
With all of these developments, could the death of speech codes be on the horizon at long last? Sadly, our research indicates that, in spite of everything, speech codes are as strong and pervasive as ever.
For our 2007 report, FIRE surveyed publicly available policies at the 100 "Best National Universities" and at the 50 "Best Liberal Arts Colleges," as rated in the August 28, 2006 "America's Best Colleges" issue of U.S. News & World Report. FIRE surveyed an additional 196 major public universities. (because public universities are legally bound by the First Amendment, FIRE is continually adding data on public universities to our database, at a rate consistent with our available resources). Several FIRE staff members spent a substantial portion of their year researching literally thousands of policies and rules in student handbooks, other official campus materials, and on schools' websites. The policies were then evaluated by FIRE's specialized lawyers and assigned a red (worst), yellow or green light (best) rating to the university based on the extent to which their written policies restricted constitutionally protected speech. We publicly post all of the relevant materials, our ratings, and excerpts containing the language most dangerous to basic liberties on our Spotlight website (www.thefire.org/spotlight). It is, to our knowledge, the most extensive evaluation of campus codes ever attempted.
A school is given a "red light" if it has at least one policy that both clearly and substantially restricts freedom of speech. A "clear" restriction involves a threat to free speech which is obvious on the face of the policy, whereas a "substantial" restriction is one that is broadly applicable to important categories of campus expression.
A "yellow light" institution is one that has policies which could be interpreted to suppress protected speech, or policies that, while restrictive of freedom of speech, restrict only narrow categories of speech. For example, a policy banning "verbal abuse" would have broad applicability and would pose a substantial threat to free speech, but it would not be a clear violation because "abuse" might refer to unprotected speech, such as threats of violence or genuine harassment. "Yellow light" policies may still be unconstitutional,28 but they do not clearly and substantially restrict speech in the same manner as "red light" policies.
If FIRE finds no policies that seriously imperil protected speech, a college or university receives a "green light." This does not necessarily mean that a school actively supports free expression. It simply means that the school does not have any publicly available written policies which violate students' free speech rights.
Of the 346 schools reviewed by FIRE, 259 received a red-light rating (75%), 73 received a yellow-light rating (21%), and only 8 received a green-light rating (2%). Six schools did not receive any rating from FIRE. Surprisingly, public schools, which are unambiguously legally bound by the First Amendment, actually had a somewhat higher percentage of "red light" ratings; a full 79% of public schools were "red light," 19% "yellow light", and 2% green.
What Makes Speech Codes So Hardy? So how do speech codes continue to survive? I have come to the conclusion that there are at least four major factors at work:
- Ideology: Political correctness is still alive and powerful on our college campuses. The belief that some students (and, indeed, some administrators) have a right not to be offended plays a part in dozens upon dozens of incidents every year in which FIRE must come to the defense of a student or faculty member who said "the wrong thing." "The wrong thing" can range from publishing an "insensitive cartoon,"30 to sending out an overly ironic Halloween invitation,31 to an attempt to satirize or protest any number of issues, from affirmative action32 to terrorism and religious extremism.33
- Bureaucracy: What I find perhaps most galling about universities' unwillingness to defend free speech and provide basic due process rights for students is that students are being asked to pay increasing portions of their lifetime earnings for the privilege of attending these institutions. Furthermore, their tuition money is far too infrequently spent on improving faculty-to-student ratios or otherwise guaranteeing the quality of education. Rather, it goes toward an ever expanding army of student judicial officers, residential life officials, and other administrators whose primary existence seems to revolve around keeping an eye on students and being involved in their lives. The results have not been surprising, as administrators justify their positions and salaries by diagnosing more and more problems in the behavior, speech, and even attitudes and beliefs of students.
- Liability: This is the factor that I believe gets the least attention from the critics of campus political correctness. An ever-growing industry of university lawyers and "risk management" experts has left universities in a panic about avoiding lawsuits. Unfortunately, some poorly decided harassment cases, as well as case law indicating an increased legal duty on the part of campus administrators to police the behavior of students,34 seems to have encouraged many plaintiffs. At the same time, the risk management industry has a vested interest in exaggerating how serious and complex the state of the law actually is, and in this process free speech and due process often lose.
- Genuine ignorance of the law, the principles of modal liberty, and the reality of speech codes: Starting in 2000, FIRE has made a point of sending a representative to the annual Association of Student Judicial Affairs conference, and we have led seminars there concerning abuses of student speech rights on campus. While there are notable exceptions, I have been routinely surprised by how much misinformation and lack of understanding there is among both college administrators and university counsels regarding basic principles of free speech and academic freedom.
FIRE has a number of strategies for addressing the problems presented by these four factors, which I will address in greater detail below.
The argument of "But we don't enforce our speech codes." A favorite argument of those on campus who defend speech codes is to essentially say, "Yes, we do have speech codes on the books but we don't enforce them." This explanation has been oddly effective at quelling some campus concerns about codes. It is, of course, a peculiar argument-why are the codes there if the administration does not intend to use them? But it may nonetheless help to convince some administrators that the codes do little harm, while allowing universities to express their opposition to offensive speech.
Defeating speech codes depends, at least in part, on dismantling this faulty argument. The first response is that this claim is just flatly and demonstrably wrong: FIRE can point to dozens of well-documented examples of campus policies being used against clearly protected speech-cases that readers can see for themselves at https://www.thefire.org/index.php/case/. To cite just one recent glaring example in which a code was used to justify viewpoint based censorship, in the spring of 2006 Pennsylvania State University's School of Visual Arts cancelled the opening of a student's art exhibit on the basis that the student's art violated the university's Statement on Nondiscrimination and Harassment. The student's exhibit on images of terrorism, which showed the destruction of Jewish shrines, anti-Semitic cartoons and propaganda in Palestinian newspapers, and the indoctrination of Palestinian youth, did "not promote cultural diversity" or "opportunities for democratic dialogue," according to the School of Visual Arts.35
Second, while universities may claim that they do not actually enforce their speech codes, they have the convenient protection of the Family Educational Rights and Privacy Act (FERPA), which requires a university, whether public or private, to keep disciplinary proceedings against students confidential,36 to hide behind.
Third, even if the university has not enforced the code, it is still part of its regulations and may, at any time, be pulled out when a student or faculty member might wish to silence, intimidate, or punish a member of the community whose opinions he or she disagrees with. It would most likely be at the very instances when free speech protections are most badly needed that the dormant code would be dusted off and put to work.37
Finally, and most importantly, the speech code itself, whether enforced or not, is the harm. First Amendment jurisprudence recognizes this concept in the doctrine of "facial" unconstitutionality. A speech regulation may be declared "facially" unconstitutional if it, by its very terms, sweeps in a large amount of clearly protected speech or if it is so vague that people of reasonable intelligence would have to guess at its meaning. Either way, speech is "chilled" because the overwhelming majority of people typically would rather keep their mouths shut than risk the consequences of violating such a policy. Furthermore, if the speech code is promulgated through the student handbook at a public university and the administration tells students that the university reserves the right to punish any speech that it deems "offensive," it has both chilled speech and gravely misinformed students about their rights as students and citizens, whether the administration intends to enforce the speech code or not.
Defeating Speech Codes
Speech codes have proven to be surprisingly resilient, so what strategies can be used to eradicate them once and for all?
For starters, the Speech Codes Litigation Project is essential to this end and has, so far, proven to be uniformly successful.38 Likewise, David French, director of the Alliance Defense Fund's Center for Academic Freedom, has committed his organization to litigating against speech codes, and so far his attempts have been equally successful.39 At every school where a "red light" speech code has faced a sustained challenge,40 that code has fallen—whether by the university's unilateral decision, negotiation with the school, or legal decision. However, more litigation is sorely needed. In FIRE's experience—given that overbroad speech codes are plentiful and many lawyers are interested in doing pro bono work on important matters of constitutional law—finding students who are willing to sue their own schools is the great limiting factor for the Speech Codes Litigation Project. FIRE hopes that more brave students are willing to come forward to challenge their schools' repressive codes, and we will be working to identify these students both through our Campus Freedom Network and through cooperation with other non-profits.
Continued litigation is, however, not enough by itself. Colleges around the country have chosen to ignore one legal decision after another, and because it is not possible to litigate against every single school in the country, other approaches must be taken as well.
Since its founding, FIRE's primary weapon has been public exposure. FIRE's ever expanding Spotlight speech code database and our regular speech code reports are crucial aspects of this effort. Prior to the creation of the Spotlight database, partisan commentators could pretend that speech codes no longer existed; now they can look for themselves to the original documentation taken from university websites to see that speech codes are indeed alive and well.
To go along with Spotlight, FIRE has been drawing attention to particularly egregious speech codes through our Speech Code of the Month program. In a relatively short amount of time, the program has already led to the revision of speech codes at seven schools.41 We have also discovered that collaborating with students on campus can be a particularly effective means to defeating speech codes. In this respect, we are hopeful that our new Campus Freedom Network will help attract more ground forces in the battle against speech codes.
It is, also, crucial that this effort not be understood in an overly partisan rubric. My experience indicates that average Americans, whether they are Democrats or Republicans, think that having speech codes on college campuses is unjustifiable. Some of FIRE's most effective campaigns against speech zones, for example, have been in collaboration with local ACLU chapters42 and left or liberal student groups.43 Opposing speech codes likewise may present an opportunity for real and meaningful cross spectrum cooperation.
As for the problem of a genuine lack of understanding of the law and the basic philosophy of liberty on the part of college administrators, FIRE already leads seminars educating campus administrators about fundamental principles of free speech and individual liberty. In the future we hope to participate in more conferences and even to establish a continuing legal education program for university lawyers.44
As for the confusion caused by genuine ambiguities in the law, FIRE hopes that this can be addressed through further litigation and legal scholarship. To this end, we've established our Justice Robert H. Jackson Fellowship, which is directed at producing legal scholarship on precisely the types of legal ambiguities that exacerbate the erosion of liberty on campus.
As for changing the prevailing culture, a lack of ideological commitment to the principles of a free society is a tremendous hurdle to overcome. FIRE, however, may be more optimistic than most people about the potential for change due to the fact that our remarkable record of successes relies almost entirely on American society's belief in fundamental liberties. Free speech, meaningful dissent, regard for toughness in debate, and a willingness to question existing orthodoxies have, to forgive the expression, become fashionable again. And while we have a long way to go, I have seen real change in the attitudes of administrators and students. An encouraging sign of the progress that FIRE has witnessed during its eight years of existence is the fact that case submissions have begun to decline, even as FIRE's prominence and name recognition has grown. From a qualitative standpoint, it appears as though schools are increasingly handling instances of "offensive" speech in ways that show regard for free speech. Whether this is due to a genuine shift in appreciation for free speech among college administrations, or merely out of fear of public embarrassment is, of course, impossible to tell.
Is Legislation the Answer? FIRE has traditionally held a healthy skepticism of the effectiveness of legislation. Legislation tends to be a clumsy instrument, and oftentimes even well thought out and well constructed legislation becomes highly distorted through the political process. We have, therefore, avoided supporting legislation in the past.45
Looking forward, however, legislation might be appropriate in certain areas. Legislators could very well require universities to follow controlling case law, to define harassment in a way that follows the appropriately narrow formulation of the only student-on-student harassment case to reach the Supreme Court, Davis v. Monroe County Board of Education,46 and to provide further redress for students and faculty members whose free speech rights have been violated. Congress could also give teeth to contractual requirements so that private universities face more serious consequences should they fail to live up to their promises regarding free speech. Thus, well constructed legislation could help end the scandal of campus speech codes forever. FIRE will be exploring how to best achieve these results in the coming years.
The war against speech codes has spanned two decades and, despite constant losses in the courts and in the court of public opinion, too many of these codes remain. Ending this scourge once and for all will require the coordinated effort of groups like FIRE, litigators, faculty, students, alumni, and possibly even federal and state governments. The first step, furthered by our database, our speech code report and articles such as this one, is to make sure that the public knows that these codes still exist, that they are pervasive, and that they are harmful. And the harm is indeed grave: entire generations of educated Americans are being taught that they have fewer rights than they actually do, while at the same time being inculcated with a fatal hostility to the very principles of free speech and academic freedom that make our democracy and our system of education possible. Because our campuses seem oblivious to the dangers inherent in raising a generation that sees little wrong in regulating away "disagreeable" expression, it is up to those of us who care about preserving the basic principles of liberty to band together in this fight. It is a fight we can win, and indeed it is a fight we must win. Campus speech codes have survived for too long; it is time that they are finally relegated to the dustbin of history.
1 The author would like to thank Azhar Majeed and Kelly Sarabyn for their help in preparing this article. I would particularly like to thank FIRE Director of Legal and Public Advocacy Samantha Harris for her outstanding work on FIRE's speech code database, 2006 report, and Speech Code of the Month feature.
2 For more information about these and other harassment policies, refer to FIRE's Spotlight website. www.thefire.org/spotlight.
3 Carnegie Foundation for the Advancement of Teaching. Campus Tensions.
4 Robert O'Neil, Free Speech in the College Community (Bloomington, IN: Indiana University Press, 1997).
5 Alan Charles Kors and Harvey A. Silverglate, "Codes of Silence - Freedom of Speech in University Campuses," Reason, November 1998.
6 Alan Charles Kors and Harvey A. Silverglate, The Shadow University: The Betrayal of Liberty on America's Campuses (New York, NY: The Free Press, 1998).
7Doe v. University of Michigan, 721 F. Supp. 852, 858 (E.D. Mich. 1989).
8 O'Neil at 11. To use another illustration, Drexel University in Pennsylvania still, to this day, maintains a ban on "inappropriately directed laughter" and "inconsiderate jokes."
9 Policies at some schools, such as Antioch College, made no attempt to hide their intention of rewriting the basic rules of appropriate human interaction. Antioch gained national attention when it introduced its Sexual Offense Prevention Policy in the early 90s, which defined required consent as "the act of willingly and verbally agreeing to engage in specific sexual conduct." Given that normal human sexual interaction does not involve such constant verbal negotiation and renegotiation, the plain language of the code made virtually any sexually active member of the Antioch community an offender of the policy.
10 President George H.W. Bush, University of Michigan Commencement Address, May 4, 1991.
11 The objective of the bill was to bind private colleges and universities (but only those receiving federal aid) to the same First Amendment obligations that public schools were held to. It would have allowed students at such private schools to sue for injunctive and declaratory relief any time their administration restricted speech in a manner inconsistent with the students' First Amendment rights. The bill did provide an exemption for religious universities, to the extent that its application would be inconsistent with their religious tenets. See Henry J. Hyde and George M. Fishman, "The Collegiate Speech Protection Act of 1991: A Response to the New Intolerance in the Academy," Wayne Law Review 37 (1991): 1469-1525.
12 O'Neil at 11. See also Robert C. Post, "Racist Speech, Democracy, and the First Amendment," William and Mary Law Review 32 (1991): 269-70.
13UMW Post, Inc. v. Bd. of Regents of University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wisc. 1991).
14R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). In R.A.V., the city of St. Paul attempted to prosecute an individual under the city's "Bias-Motivated Crime Ordinance" for burning a cross in the yard of a black family. The Court held that the city's ordinance, which prohibited placing, on public or private property, "a symbol, object, appellation...which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender" was invalid because it unconstitutionally prohibited "otherwise permitted speech solely on the basis of the subjects the speech addresses." The primary principle to be drawn from this case is that even within an unprotected form of speech, the state may not choose to ban only those viewpoints it dislikes.
15Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1993). Dambrot involved a basketball coach who was fired by the university for using a racial epithet to "motivate" his basketball team. The court ruled that the university's harassment policy was unconstitutionally overbroad and vague and was furthermore directed at censoring unpopular viewpoints, and accordingly prohibited the University from enforcing the policy.
16 Kors and Silverglate at 27.
17Robert J. Corry v. The Leland Stanford Jr. University, No. 740309 (Cal. Super. Ct. 1995). In Corry, a California state court struck down Stanford University's speech code because it banned speech that was protected by the Constitution. The university argued that the speech code prohibited only speech within the Supreme Court's doctrine of "fighting words," but the state court disagreed, holding that the speech forbidden by the university's code extended well beyond the bounds of "fighting words."
18 See also, Booher v. Board of Regents of Northern Kentucky University, U.S. Dist. LEXIS 11404 (E.D. Ky. 1998). The court determined that a university's sexual harassment policy was facially invalid under the First Amendment due to its vagueness and overbreadth. The court noted that the "policy gives one the impression that speech of a sexual nature that is merely offensive would constitute sexual harassment..."
19 491 U.S. 397 (1989). The Supreme Court held in Johnson that the defendant's act of flag burning was protected speech, famously stating that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. . ."
20 See, e.g., Papish v. Board of Curators of the Univ. of Missouri, 410 U.S. 667, 670 (1973) ("[T]he mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency'"), and Healy v. James, 408 U.S. 169, 180 (1972) ("[t]he college classroom with its surrounding environs is peculiarly the marketplace of ideas").
21 O'Neil at 20-21.
22 See, e.g., Jon B. Gould, The Precedent That Wasn't: College Hate Speech Codes and the Two Faces of Legal Compliance, 35 Law & Soc'y Rev. 345, 345 (2001) ("[H]ate speech policies not only persist, but they have actually increased in number following a series of court decisions that ostensibly found many to be unconstitutional."). Alan Charles Kors and Harvey Silverglate also exposed the continuing pervasiveness of these codes in their 1998 book, The Shadow University, and it was a primary motivation for their founding the Foundation for Individual Rights in Education (FIRE) in 1999. By the time of Gould's article, FIRE had already begun work on its own far larger scale, more in depth study of campus speech codes. In 2003, Harvey Silverglate and I published an article in which we announced: "FIRE's still-in-progress survey and analysis demonstrates that a clear majority of higher-education institutions have substantial speech restrictions and many others have lesser restrictions that still, arguably, infringe on academic freedom." Greg Lukianoff and Harvey Silverglate, "Speech Codes Alive and Well," Chronicle of Higher Education, August 1, 2003.
23 280 F. Supp. 2d 357 (M.D. Pa. 2003).
24 346 F. Supp. 2d 853 (N.D. Tex. 2004).
25 Gerald A. Reynolds, Letter from the U.S. Department of Education, Office of Civil Rights, July 28, 2003.
27 The ASJA statement is available at: https://www.thefire.org/index.php/article/11.html?PHPSESSID=...
28 For example, in 2004, the U.S. Court of Appeals for the Third Circuit found that a state law banning advertisers from paying to place advertisements for alcoholic beverages in university newspapers was unconstitutional. Pitt News v. Pappert, 379 F. 3d 96 (3rd Cir. 2004).
29 The following universities were not rated: Bard College, Baylor University, Boston College, Brigham Young University, Worcester Polytechnic Institute, and Yeshiva University. Consistent with the freedom of association of colleges, FIRE recognizes that a private college may choose to define itself as being committed to values other than free speech, as long as the school makes it publicly and consistently clear that it holds a certain set of values above a commitment to free speech. For example, Brigham Young University (BYU) is quite forthright in its stated policies that students entering BYU are not guaranteed robust free speech rights. One BYU policy says the following about free expression: "[T]he exercise of individual and institutional academic freedom must be a matter of reasonable limitations. In general, at BYU a limitation is reasonable when the faculty behavior or expression seriously and adversely affects the university mission or the Church." It would be clear to anyone attending BYU that they are not entitled to unfettered free speech at BYU. This does not mean that FIRE agrees with BYU's restrictions; rather FIRE recognizes that if a private college clearly does not promise free speech, and the college makes this known publicly and consistently, entering students have given informed consent and have voluntarily chosen to limit their own rights-in much the same way students entering military academies or theological seminaries understand that they are relinquishing many rights they would enjoy at a state college. Most private colleges, however, do promise robust free speech rights and FIRE believes that these schools should deliver on their promises. Several courts have recognized this "contract theory" of student rights at private institutions. See Tedeschi v. Wagner College, 49 N.Y. 2d 652 (Ct. App. 1980); McConnell v. Le Moyne College, 2006 N.Y. Slip Op. 256 (Sup. Ct. 2006); and Schaer v. Brandeis, 432 Mass. 474 (Sup. Ct. 2000).
30 One such episode took place in 2004 at Missouri State University. For more information, check FIRE's webpage on this case: https://www.thefire.org/index.php/case/652.html.
31 In 2006, a Johns Hopkins University student was suspended for an entire year for sending out an "offensive" Halloween invitation. For more information, check FIRE's webpage on this case: https://www.thefire.org/index.php/case/730.html.
32 Just one example of university suppression of an affirmative action bake sale took place at the University of California at Irvine in 2003. FIRE's webpage on this case contains further details: https://www.thefire.org/index.php/case/644.html.
33 In 2006, a student group at San Francisco State University was dragged through a lengthy investigation and hearing for holding an anti-terrorism rally on campus. More information on this case is available here: https://www.thefire.org/index.php/case/734.html.
34 See, e.g., Shin v. MIT, No. 02-0403 (Mass. Super. Ct. 2005).
35 More information about this case is available at: https://www.thefire.org/index.php/article/6997.html.
36 Harvey A. Silverglate and Josh Gewolb, FIRE's Guide to Due Process and Fair Procedure on Campus (Philadelphia: Foundation for Individual Rights in Education, 2003), 79.
37 To illustrate, one need look no further than a 2006 case at Marquette University, where a university administrator removed a political quote from a Ph.D. student's office door. The university justified its actions by arguing that, under its regulations, hallways and office doors are not "free speech zones." However, this argument flew in the face of university practice; in the past, other members of the student's department had been allowed to post materials on their doors without reprimand. Thus, the administration could not hide the fact that it was selectively applying an obscure provision in order to suppress a viewpoint that it did not like. More information about this case is available at: https://www.thefire.org/index.php/case/726.html.
38 For example, the State University of New York at Brockport in 2005 decided to settle a lawsuit challenging its speech code, which listed the following as examples of harassment: "cartoons that depict religious figures in compromising situations"; "calling someone an ‘old bag'"; "jokes making fun of any protected group"; and even merely "discussing sexual activities." For more information about this case, refer to FIRE's website: https://www.thefire.org/index.php/case/76.html. Most recently, a court enjoined San Francisco State University's speech codes. This litigation was the sixth successful lawsuit in FIRE's Speech Codes Litigation Project and was done in collaboration with the Alliance Defense Fund.
39 ADF's legal successes include victories at Georgia Institute of Technology, Temple University, and Penn State University.. More information about these and other cases can be found on ADF's website: http://www.alliancedefensefund.org.
40 One school that did not face a sustained challenge, and therefore did not have to amend its policy, is Troy University. Although a lawsuit was initially brought in federal court, it failed on grounds of mootness, as the student challenging Troy's speech code had graduated. For more information about this case, refer to FIRE's website: https://www.thefire.org/index.php/case/688.html.
41 These schools are Fayetteville State University, the University of Mississippi, Colorado State University, Jacksonville State University, Massachusetts College of Liberal Arts, the University of Nevada at Reno, and Albertson College of Idaho. In addition, policy change is imminent at Western Michigan University, where a concerned alumnus wrote to the university president after FIRE named the university's sexual harassment policy its Speech Code of the Month for March 2007. Information on these and other cases can be found at FIRE's Speech Code of the Month webpage: https://www.thefire.org/category/speech-code-of-the-month/.
42 In 2006, FIRE, in conjunction with the ACLU of Nevada, was able to bring about meaningful change at the University of Nevada at Reno. The university previously had had a policy in place designating only four remote areas of the campus as "public forum areas," while the rest of campus was a "non public forum." Under pressure from FIRE and the local ACLU chapter, however, the administration capitulated and designated the entire campus, except for the interior of university buildings, as "open public forum areas." More information is available at: https://www.thefire.org/index.php/case/711.html.
43 In the previously mentioned case at the University of Nevada at Reno, FIRE worked in collaboration with student activists at the university, in addition to the local ACLU chapter. In fact, the students helped to propose a new policy, and worked closely with university administrators in the drafting process. To use an earlier example, FIRE took aim at a chilling speech policy at West Virginia University in 2002 with the help of two student groups, the West Virginia University Free Speech Consortium and the West Virginia Association of Scholars. In achieving this early and monumental victory, FIRE's coalition was able to convince the administration to change its policy from one that limited free expression to two small areas of campus to one that designated the entire campus as a "free speech zone." Along with the Reno case, this outcome speaks volumes about the power of FIRE and its allies to bring about meaningful change when they work together. More information about the case is available at: https://www.thefire.org/index.php/case/30.html.
44 What would perhaps be the most significant step along these lines would be an opportunity for FIRE to directly address the National Association of College and University Attorneys (NACUA), the umbrella association of university lawyers and general counsels. In my experience with FIRE, university counsels-while being extremely familiar with harassment lawsuits and investigations-too often have a shocking lack of knowledge of First Amendment law.
45 Also, as a Section 501(c)(3) non-profit organization under the U.S. Internal Revenue Code, FIRE is limited in the amount of lobbying it can do to influence legislation. Specifically, "no substantial part" of FIRE's activities may be devoted to lobbying. 26 U.S.C. § 501(c)(3).
46 526 U.S. 629 (1999) (holding that in order for student-on-student harassment to fall outside of constitutionally protected speech, it must be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit").