Greg Lukianoff on First Amendment Freedoms on Campus

Greg Lukianoff joins Andy Nash for the third episode of Inside Academia. Mr. Lukianoff, an attorney, is president of the Foundation for Individual Rights in Education, or FIRE. He is co-author of the Guide to Free Speech on Campus, has testified before Congress on college free speech, blogs for The Huffington Post, and has written for numerous publications including the Los Angeles Times and the Boston Globe.

View video

Key Take-Aways

• 2:56 – Mandatory counseling for posting a flier (2 min)
• 5:36 – Students don’t know their rights, schools exploit that (:30)
• 6:33 – 67% of 390 Top Colleges maintain “laughably unconstitutional” speech codes (2 min)
• 7:41 – Anti-bullying bill in Congress, makes existing laws overly broad (1 min)
• 10:34 – Administrators just don’t like being criticized (:30)
• 11:30 – Are FIRE’s efforts working? (1 min)
• 12:31 – For cost of college you should get due process and freedom of speech (:30)
• 13:22 – Higher ed falling down on the job (:30)

Andy’s Show Notes

“Universities cannot defend in public what they do in private” was one of the guiding principles for University of Pennsylvania professor of the Enlightenment Dr. Alan Kors in founding the Foundation for Individual Rights in Education (FIRE).  Colleges and universities seem to believe they can take existing state and federal laws on harassment and expand them so broadly with their policies that almost anything can qualify as “harassment.”

Hence, it is no wonder some end up crafting policies stating, for example, “intolerance will not be tolerated,” and countless others that amount to what FIRE calls speech codes.  Founder Alan Kors articulated the purpose of FIRE as upholding rights that include “freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience – the essential qualities of individual liberty and dignity.”

The current FIRE president, First Amendment attorney Greg Lukianoff, stated his organization has chronicled and challenged in the court of public opinion (far more so than in the courtroom) hundreds of egregious cases from colleges across the country since the group’s inception in 1999, in which schools have violated students’ individual or associational rights in some way shape or form.  Their research found that, despite a common belief that college speech codes withered on the vine in the 90′s, “67% of 390 top colleges maintain speech codes that are laughably unconstitutional, and that’s an improvement from 79%”.  Lukianoff believes that increased litigation, including instances of administrators being held personally liable in some cases, is helping to decrease this number, which is still embarrassingly high.

The infamous 1993 “water buffalo” case at UPenn, where a student was about to be expelled for calling a group of loud students “water buffalos” below his dorm room window, was the culminating event that served as the beginning of what is now FIRE.  It was one of thousands of cases from colleges across the country where students would be denied due process and castigated in a judicial-style proceeding by their school’s discipline office.  Lukianoff offers other examples, such as a student kicked out of the dorms at the University of New Hampshire, given two years probation and (believe it or not) mandatory psychological counseling – all for putting up a sign telling girls they could lose weight for taking the stairs one floor instead of the elevator.  Students at Yale stirred controversy with a quote from celebrated American author F. Scott Fitzgerald on a T-shirt mocking rival Harvard, because it contained the word “sissies.”  Students at the University of South Florida were denied chartering a chapter of the conservative Young Americans for Freedom, because “there already was a libertarian club,” despite the dozens multicultural and Left-leaning special interest groups on campus.

So why do overly broad speech codes get made?  Aside from fearing legal liability from legitimate claims of harassment, university officials do have a set of values they seek to foster, and they also want to come down hard on perceived intolerance that shocks the sensibilities.  The fact that they are usually obsessed with the sensibilities of the socially liberal and none too concerned with those of the socially conservative notwithstanding, Lukianoff says many college administrators just don’t like to be criticized and insulted.  Moreover, administrators have genuflected to special interests in the name of tolerance and diversity at the expense of others’ individual rights, and at the same time have arrogantly rebuffed claims and abuses.

But that doesn’t entirely explain why universities, supposedly bastions of free thought and expression, would risk such First Amendment liabilities.  They know that students are largely ignorant of what rights they do have as adults coming into college.  Their prior years of schooling did little or nothing to educate them of their individual rights.  So over the years it has become apparent to college administrators which types of squeaky wheels needed to be immediately greased and which could be safely dismissed as empty cans rattling the most.

Some colleges may have bought into the false choice that it is safer for them to err on the side of legal challenges of free speech violations as opposed to claims of harassment.  Lukianoff argues the massive expansion of university bureaucracies over the last decade is a huge impediment to bringing about significant reform, despite the some 200 victories FIRE has seen in getting schools to change their policies.  It speaks to the insecurity and tone-deafness with which administrators proceeded in touting their social values, while arrogantly defying individuals’ first amendment rights and their assorted grievances.  To universities, external groups publicly exposing them and sometimes legal groups suing them, mean that (in their minds) they have to increase their rank and file of PR spokespersons and attorneys on retainer.

Lukianoff ultimately concludes that we need to replace the ethos of “not wanting to hurt anyone’s feelings” with one of diving in and having robust discussions.  It’s a shame that many colleges today have become so dysfunctional that it requires external watchdog organizations to publicly expose abuses, and in some instances, even challenge them in court.  If we truly had a healthy and vibrant university community to speak of, and that students found themselves a part of, then incidents would be either so minimal or settled fairly, that there arguably wouldn’t be a need for groups like FIRE.