Tip of the Iceberg: Recent Controversy Reveals More Free Speech Problems at Fordham

After Fordham University made waves a few weeks back over President Joseph McShane's harsh condemnation of the university's College Republicans for inviting Ann Coulter to speak on campus (an invite which, it turned out, the group had already decided to rescind), FIRE began to hear from students at Fordham who wanted to (anonymously) tell us more about the climate for free speech and dissent on campus.

First, it bears explaining why we are talking about the right to free speech at a private, Catholic university like Fordham. The answer is simple: Fordham holds itself out as an institution that is committed to free speech, and as a result its students have a right to expect it. 

In contrast to Fordham's promise of free expression, there are some Catholic institutions that make clear that their Catholic identities take precedence over students' right to free speech. The Catholic University of America, for example, states upfront that

This freedom to express oneself verbally, in writing, or by peaceful demonstration, even in significantly controversial matters, may be constrained in a private university by other values which are held to be equal, greater or prior. The Catholic University of America, as a private institution, is not required to provide a forum for advocates whose values are counter to those of the university or the Roman Catholic Church.

By comparison, Fordham's mission statement itself provides that Fordham "guarantees the freedom of inquiry required by rigorous thinking and the quest for truth." Moreover, the university's demonstration policy states that:

By its very nature, the University is a place where ideas and opinions are formulated and exchanged. Each member of the University has a right to freely express his or her positions and to work for their acceptance whether he/she assents to or dissents from existing situations in the University or society.

In recent years, however, Fordham has taken a number of actions that are inconsistent with these strong commitments to support free speech. According to Fordham University student publication the paper, the university's Office of Student Life has denied student activity fee funding for student productions of The Vagina Monologues and Spring Awakening because of content that "violates the university's mission." But the idea that Fordham "guarantees the freedom of inquiry required by rigorous thinking and the quest for truth" is itself found in the university's mission statement. One can see how this decision would leave students profoundly confused about what expression is acceptable on campus.

Yet more free-speech problems stem from the university's demonstration policy, which—despite its lofty statements about student speech—makes no allowance for spontaneous expressive activity and vests the administration with near-total discretion to approve or deny demonstrations for any reason. 

According to the policy, in order to hold a demonstration on campus, a member of the organizing student group must first meet with the dean of students. If approved, the demonstration will then be scheduled for "no less than 2 business days after this meeting," denying students the right to hold spontaneous demonstrations in response to unfolding events. Worse yet, the policy does not specify any criteria by which the dean of students will approve or deny demonstration requests, providing only that if a student or student group chooses to appeal a denial, the dean will provide a "brief explanation" to those charged with deciding the appeal. (According to the plain language of the policy, the students themselves do not even receive this explanation!)

At a public university, this policy would violate the First Amendment, since the U.S. Supreme Court has explicitly held that "subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 394 U.S. 147, 150–51 (1969). And while Fordham is private, its expressed commitments to free speech mean that its students can rightfully expect to have the same expressive rights as their counterparts at New York's public colleges and universities.

To see how the absence of clear, content-neutral criteria for approval can lead to an abuse of administrative discretion, one need look no further than Fordham itself. In October of 2011, a vigil organized by the Fordham Anti-War Coalition in commemoration of the ten-year anniversary of the United States military's operations in Afghanistan was shut down, supposedly because the group's request to hold the event had not been received and officially approved in advance. But just a few months earlier, Fordham students had engaged in a large, "spontaneous gathering" in response to the news that Osama bin Laden had been killed by U.S. forces. 

When policies on student expressive activities are not clear and narrowly drawn, this kind of arbitrary application (or worse yet, deliberate double standard) is almost inevitable. Indeed, one of the members of the Fordham Anti-War Coalition told Fordham's student paper that although they knew their demonstration request was still listed as "pending" at the time of the vigil, "[w]e didn't think it'd be such a big deal because we know other clubs do it."

In response to the problems with the demonstration policy, the student government's Commission on Speech and Expression proposed the creation of a "free speech zone" on campus—to be called "Maroon Square"—where spontaneous expressive activities would be permitted, a proposal that the university rejected. But hopefully that rejection, combined with renewed student interest in free speech on campus, will open the door to a new discussion, since Fordham students are selling themselves very short by requesting just one free speech zone. As FIRE routinely writes to universities around the country, and as federal courts have ruled at public universities, free speech cannot—consistent with the First Amendment—be confined to just one small area of campus. Rather, any traditionally public spaces such as lawns and park-like areas should be open to expressive activity so long as the activity does not violate university rules and policies necessary to protect the educational environment of the campus. If Fordham is to bill itself as a haven for free speech and expression, this should be true on its campus as well.

The good news is that there are students at Fordham who care passionately about their free speech rights. While the Maroon Square proposal did not go far enough in requesting space for spontaneous expressive activity, it was a thoughtful and well-written proposal whose authors understand the critical importance of free speech on campus. And students have recently formed a Facebook group called Fordham Students for Free Speech to further advocate for free speech on Fordham's campus. We hope these students and others will continue to advocate for the rights their administration promises them, and FIRE stands ready to help.