The State of Free Speech on Campus: Stanford University

Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Stanford University, which FIRE has given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus.

Stanford University is private, but it explicitly commits itself to protecting free speech on campus. The university's policy on campus disruption—labeled one of just a few "critical policies" for student organizations—states that

The rights of free speech and peaceable assembly are fundamental to the democratic process, and the University firmly supports the rights of members of the community to express views or protest against action and opinions with which they disagree.

The university reiterates this commitment in its sexual harassment policy, which provides that "Stanford is committed to the principles of free inquiry and free expression."

In addition to its own commitments, Stanford is also required by California's Leonard Law (which we discussed in detail in last week's entry on Cal Tech) to provide its students with the same First Amendment rights they would enjoy on a public university campus. Unfortunately, Stanford does not live up to its commitments and legal obligations.

Most troubling is Stanford's policy on "terms of use for sites." This policy applies broadly to anyone "accessing or participating in any chatroom, newsgroup, bulletin board, mailing list, website, transaction, or other on-line forum available at stanford.edu, stanfordalumni.org or other Stanford sites." The policy acknowledges that its definition of "sites may include unmoderated forums containing the personal opinions and other expressions of the persons who post entries on a wide range of topics." Users of any of the above resources must agree, among other things, not to post "statements that are bigoted, hateful, or racially offensive." None of these terms are further defined.

The policy explicitly acknowledges that Stanford sites may be used for the posting of "personal opinions," but then prohibits posting any opinions that are "racially offensive" or "bigoted." This is blatant viewpoint discrimination—a free speech violation of the highest order. As the U.S. Supreme Court has stated, a regulation may not "regulate use based on hostility—or favoritism—towards the underlying message expressed." R.A.V. v. City of St. Paul, 505 U.S. 377, 401 (1992). Here, Stanford has done just that—it has not banned all discussion of race or other potentially controversial topics from its online fora; it has only banned expressions of opinion on those topics that it deems to be "bigoted" or "offensive." In other words, some viewpoints on race may be freely posted, while others may not. This is an egregious violation of students' and faculty members' right to free speech, which Stanford is both legally and morally obligated to uphold. 

As we have seen time and time again, universities' efforts to reign in "bigoted speech" consistently produce absurd and outrageous results.

FIRE fought and won against a similar regime of electronic viewpoint discrimination at Glendale Community College, where a professor was threatened with punishment for sending a copy of George Washington's Thanksgiving address over a college listserv; because the document contained a link to Pat Buchanan's website, some of the e-mail's recipients found it "hostile" and "derogatory." The college claimed it was disciplining the professor for using the college listserv for communication not related to the college, but it simultaneously permitted other similarly unrelated e-mails to go out over the listserv without consequence. FIRE has also challenged universities' attempts to crack down on so-called "bigoted" or "offensive" expression at schools around the country. Recent examples include our cases at Indiana University-Purdue University Indianapolis, where a student-employee was charged with racial harassment for reading a book about Notre Dame students' famous fight with the Ku Klux Klan; at Brandeis University, where a Latin American Politics professor was found guilty of racial harassment and had a monitor placed in his classroom for criticizing the use of the term "wetback"; and at Tufts University, where a conservative student publication was found guilty of harassment for publishing satirical articles about affirmative action and Islamic extremism. Anyone who studies the First Amendment should not be the least bit surprised by this. Policies that allow people in power to ban speech they do not like quickly lead to absurd abuses, increasingly stringent censorship, and the palpable chilling of speech.

Another policy that threatens free speech on Stanford's campus is the "Fundamental Standard," which is phrased in such general terms that it could easily be applied to protected speech. As such, it is likely to have an impermissible chilling effect on campus expression. The Fundamental Standard states that "Students at Stanford are expected to show both within and without the University such respect for order, morality, personal honor and the rights of others as is demanded of good citizens. Failure to do this will be sufficient cause for removal from the University." The website where the Standard is posted also notes that "over the years, the Fundamental Standard has been applied to a great variety of situations." The wording of the Standard is so broad that it is gives the university a dangerous amount of discretion to regulate not only student conduct, but student speech. Perhaps the university only applies the Standard to conduct or unprotected speech, but a student reading it has no way of knowing whether his or her protected but offensive expression will fall within the "great variety of situations" to which the Standard might apply. And given that the punishment for violation of the Standard is "removal from the University," few students are likely to take that risk.

Stanford also explicitly maintains a "free speech zone" on campus—something totally inappropriate for a university that claims to be committed to free expression and debate. On the Office of Student Activities' website, students are informed that "White Plaza is the designated University area available for programs, speeches, rallies, information tables, banners and posters. It is considered a ‘free speech zone' on campus." Making matters worse, even White Plaza must be reserved "at least two weeks in advance." This policy is problematic for two reasons: First, it appears to quarantine expressive activity to just one area of Stanford's campus; second, even within that one area, it establishes an onerous preregistration requirement that prevents students from engaging in spontaneous expressive activity in response to unfolding events. The university will likely argue—as universities often do in response to criticism of policies like this one—that this is merely a "time, place and manner" restriction of the sort permitted under the First Amendment. But universities often vastly overestimate the permissible scope of time, place and manner restrictions. In reality, such restrictions are only permissible "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest"; in many instances, such as here, the university's restriction on speech is indeed far broader than necessary to achieve its interest in maintaining a suitable environment for education. Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

Finally, like so many universities these days, Stanford maintains an Acts of Intolerance Protocol that addresses how the university will respond to incidents of biased or otherwise intolerant speech on campus. This policy is better than many, in that it clarifies that it is procedural only and provides that "Engaging in constitutionally protected expressive activities will not subject a student to discipline...." However, it muddies the water by also stating that "the University may respond to acts of intolerance through education." This could mean a variety of things. It could simply mean that, by means of public communication, the university will try to educate its student body about the importance of tolerance in the wake of unpleasant incidents on campus. It could also mean, however, that the perpetrators of so-called acts of intolerance will be required to engage in some sort of educational activity as a result of their conduct. The Student Accountability in Community program maintained by Michigan State University [https://www.thefire.org/index.php/article/8011.html] until FIRE became involved is one horrible example of what forms these "educational" sanctions have taken at other colleges.  If students are ever required to undergo "education" by the university for engaging in protected but "intolerant" expression, this would be a violation of their rights, and indeed it would be "discipline." Stanford really needs to further clarify that students will not be disciplined nor required to participate in any sort of sensitivity training or other type of "educational" exercise for engaging in free speech on campus.

Stay tuned next week for information on the state of free speech at MIT.