FIRE to Next President of the United States: End Speech Codes and Defend Free Speech on Campus

On this Election Day, FIRE would like to announce that it will be sending a letter to the next President of the United States asking him to defend and uphold freedom of speech at America's institutions of higher education. In the letter, which will be sent to the new President on Inauguration Day, FIRE will outline three specific areas of concern: the continued prevalence of campus speech codes, the misuse and abuse of harassment law, and routine violations of students' and faculty members' speech rights.

First and most crucially, FIRE will make the point that the next President should end the reign of unconstitutional speech codes at our nation's public colleges and universities. On at least ten occasions, courts have held campus speech codes to be unconstitutional, forming an unbroken chain of defeats since such codes were first challenged in 1989. In light of this history—and especially in light of two defeats of speech codes occurring in just the past year, including a circuit court decision—the fact that over 75 percent of colleges maintain unconstitutional speech codes is simply a scandal. The courts have clearly and unequivocally indicated that speech codes at public colleges are unconstitutional. Congress has condemned restrictions on freedom of speech on campus twice in just the past ten years. Now it is time for the Executive Branch to act by upholding the laws of the land and helping to end campus speech codes once and for all.

Second, the next President should once again remind colleges, both public and private, that "harassment" is not a catch-all term for any speech that a listener finds offensive, disagreeable, or annoying. Harassment, properly defined, is a pattern of behavior which is so severe, pervasive, and objectively offensive that it effectively denies the victim equal access to educational resources and opportunities. The Department of Education's Office for Civil Rights (OCR) made this point in a 2003 "Dear Colleague" letter issued to every single university in the country, but schools have largely ignored this clarification. The 2003 letter stated that harassment, the single rationale most commonly used to justify speech codes, "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." It further explained, "No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights." The letter also made clear that a private university 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."

In spite of OCR's guidance, colleges and universities have continued to misuse and abuse harassment law. Indiana University–Purdue University Indianapolis (IUPUI) found a student-employee guilty of racial harassment in 2007 for the act of reading a scholarly book about the Ku Klux Klan during his work breaks. Brandeis University likewise found a professor guilty of racial harassment the same year for critiquing the use of the term "wetbacks" during a discussion in his course on Latin American politics. The fact that the OCR letter has gone unheeded is further demonstrated by the many flawed harassment policies maintained by universities. Davidson College, for example, defines harassment to include "[c]omments or inquiries about dating," "[p]atronizing remarks," "[i]nnuendos," and "dismissive comments." Kansas State University prohibits "generalized sexist statements and behavior that convey insulting or degrading attitudes about women." The University of Iowa crudely defines sexual harassment to include anything 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." These are just a few of the many flawed harassment policies maintained by colleges and universities across the country.

Finally, the next President should clearly state that he will not tolerate the violation of student and faculty speech rights. Despite a half-century of case law strongly protecting the free speech rights of students and faculty—including several landmark Supreme Court decisions—every year FIRE sees colleges and universities flout the Constitution by punishing and silencing students and faculty who engage in unpopular or dissenting speech. Lone Star College–Tomball, for instance, threatened a student group with probation and derecognition earlier this year for distributing satirical flyers on campus which listed "Top Ten Gun Safety Tips." Tarrant County College, meanwhile, prohibited students from wearing empty gun holsters to protest the school's policies on concealed carry. Lake Superior State University ordered a professor to remove political cartoons and postings from his office door after an anonymous person complained that they were offensive. Valdosta State University expelled a student for peacefully protesting the construction of two new parking garages on campus. Lastly, a number of schools, ranging from the University of Oklahoma to the University of Illinois to the University of Texas–Austin, have significantly curtailed student and faculty political speech in the weeks and months leading up to Election Day. These cases are just a small indication of the extent to which colleges and universities routinely violate student and faculty speech rights.

By taking a clear stand against colleges and universities that maintain speech codes, trivialize real harassment, and violate student and faculty speech rights, the new President would do a great service to higher education and, indeed, the nation. On January 20, 2009, FIRE will be sending the new President a letter outlining what we believe will need to be done in order to protect basic rights on campus. We hope he chooses to help us restore liberty to our nation's campuses.