Spotlight on Speech Codes 2021

Spotlight on Speech Codes 2021

Major Findings

  1. The percentage of schools earning an overall “red light” rating in FIRE’s Spotlight database has gone down for the thirteenth year in a row — this year to 21.3%. This is approximately a three percentage point drop from last year, and is over 50 percentage points lower than the percentage of red light institutions in FIRE’s 2009 report.
  2. 65.3% of institutions now earn an overall “yellow light” rating. Though less restrictive than red light policies, yellow light policies restrict expression that is protected under First Amendment standards and invite administrative abuse.
  3. A total of 56 colleges and universities now earn an overall “green light” rating, up from 50 schools as of last year’s report. Policies earn a green light rating when they do not seriously threaten protected expression. Significantly, there are now nearly the same number of public schools earning a green light rating (52) as there are earning a red light rating (54).
  4. 7.1% of institutions surveyed maintain “free speech zone” policies, which limit student demonstrations and other expressive activities to small and/or out-of-the-way areas on campus. A 2013 FIRE survey of these institutions found roughly double that percentage.
  5. Seventy-six university administrations or faculty bodies have now adopted policy statements in support of free speech modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”), released in January 2015. (Since this year’s report was written, two more institutions have adopted a version of the Chicago Statement, bringing the total to 78.)

Executive Summary

For the thirteenth year in a row, the percentage of red light schools has declined.click to enlarge
Most college students in the United States should be able to expect that freedom of expression will be upheld on their campuses. After all, public institutions are legally bound by the First Amendment, and the vast majority of private colleges and universities promise their students commensurate free speech rights.

In spite of this legal landscape, far too many colleges across the country fail to live up to their free speech obligations in policy and in practice. Often, this occurs through the implementation of speech codes: university policies that restrict expression protected by the First Amendment.

For our 2021 report, FIRE surveyed the written policies of 478 colleges and universities, evaluating their compliance with First Amendment standards. Overall, 21.3% of surveyed colleges maintained at least one severely restrictive policy that earned FIRE’s worst, “red light” rating, meaning that the policy both clearly and substantially restricts protected speech. This is the thirteenth year in a row that the percentage of schools earning a red light rating has gone down; last year, 24.2% of schools earned a red light rating.

SCR 2021 10 Year Ratings

The majority of institutions surveyed (65.3%) earned an overall “yellow light” rating, meaning they maintained at least one yellow light policy. Yellow light policies are either clear restrictions on a narrower range of expression or policies that, by virtue of vague wording, could too easily be applied to restrict protected expression. While the steady decline in red light institutions is cause for optimism, FIRE will continue to work with colleges and universities to ensure that yellow light institutions improve to earn our highest, “green light” rating.

A green light rating indicates that none of a university’s written policies seriously imperil protected expression. A total of 56 colleges and universities (11.7% of those surveyed) earned an overall green light rating, up from 50 schools as of last year’s report.

In further good news, more and more colleges and universities are adopting policy statements in support of free speech modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”). As of this writing, 76 universities, university systems, or faculty bodies have endorsed a version of the “Chicago Statement,” with six adoptions since last year’s report.

Though these improvements in policy are heartening, free speech on campus remains under threat. Demands for censorship of student and faculty speech—whether originating on or off campus—are common, and universities continue to investigate and punish students and faculty over protected expression.

FIRE surveyed 478 colleges and universities and found 21.3% maintain red light policies.
This year, schools across the country moved classes online and set forth new regulations in response to the COVID-19 pandemic, presenting a new set of challenges for campus free speech advocates.[1] These new challenges, combined with an increase in social justice protests and anti-racism activism on campuses, resulted in FIRE’s busiest summer ever. Indeed, in the month of June, FIRE’s Individual Rights Defense Program reviewed 287 cases of alleged violations of student and faculty rights, while the previous two years saw an average of just 49 cases each June.[2]

It is imperative that those who care about free speech on campus stay vigilant. The decrease in restrictive speech codes and the proliferation of free speech policy statements are the result of the tireless work of free speech advocates at FIRE and elsewhere. But we must ensure that new national and global challenges do not result in such progress being lost. We must continue to work to ensure that students have the opportunity to pursue their education, and that faculty are able to teach with the greatest possible foundation for free expression in place.

Methodology

For this report, FIRE surveyed publicly available policies at 372 four-year public institutions and 106 of the nation’s most prestigious private institutions. Our research focuses in particular on public universities because, as explained in detail below, public universities are legally bound to protect students’ right to free speech and can be successfully sued in court when they do not.

FIRE rates colleges and universities as “red light,” “yellow light,” or “green light” institutions based on how much, if any, protected expression their written policies governing student conduct restrict. The speech code ratings do not take into account a university’s “as-applied” violations of student speech rights or other cases of censorship, student- or faculty-led calls for punishment of protected speech, and related incidents and controversies. Monitoring and rating such incidents consistently across 478 institutions with accuracy is not feasible and is beyond the scope of this report.

The speech code ratings are defined as follows:

SCR Red Light

Red Light: A red light institution maintains at least one policy both clearly and substantially restricting freedom of speech, or bars public access to its speech-related policies by requiring a university login and password for access.

A “clear” restriction unambiguously infringes on protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied. A “substantial” restriction on free speech is one that is broadly applicable to campus expression. For example, a ban on “offensive speech” would be a clear violation (in that it is unambiguous) as well as a substantial violation (in that it covers a great deal of what is protected under First Amendment standards). Such a policy would earn a university a red light.

When a university restricts access to its speech-related policies by requiring a login and password, it denies prospective students and their parents the ability to weigh this crucial information prior to matriculation. At FIRE, we consider this denial to be so deceptive and serious that it alone warrants an overall red light rating.

SCR Yellow Light

Yellow Light: A yellow light institution maintains policies that could be interpreted to suppress protected speech or policies that, while clearly restricting freedom of speech, restrict relatively narrow categories of speech.

For example, a policy banning “verbal abuse” has broad applicability and poses a substantial threat to free speech, but it is not a clear violation because “abuse” might refer to unprotected speech and conduct, such as threats of violence or unlawful harassment. Similarly, while a policy banning “profanity on residence hall door whiteboards” clearly restricts speech, it is relatively limited in scope. Yellow light policies are typically unconstitutional when maintained by public universities,[3] and a rating of yellow light rather than red light in no way means that FIRE condones a university’s restrictions on speech. Rather, it means that in FIRE’s judgment, those restrictions do not clearly and substantially restrict speech in the manner necessary to warrant a red light rating.

SCR Green Light

Green Light: If FIRE finds that a university’s policies do not seriously threaten campus expression, that college or university receives a green light rating. A green light rating does not necessarily indicate that a school actively supports free expression in practice; it simply means that the school’s written policies do not pose a serious threat to free speech.

SCR Blue Light

Warning: FIRE believes that free speech is not only a moral imperative, but an essential element of a college education. However, private universities, as private associations, possess their own right to free association, which allows them to prioritize other values above the right to free speech if they wish to do so. Therefore, when a private university clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech, FIRE gives it a Warning rating in order to warn prospective students and faculty members of this fact.[4] Eight schools surveyed for this report meet these criteria.[5]

Findings

FIRE reviewed policies at 478 colleges and universities.
Of the 478 schools reviewed by FIRE, 102, or 21.3%, received a red light rating. 312 schools received a yellow light rating (65.3%), and 56 received a green light rating (11.7%). Eight schools earned a Warning rating (1.7%).[6]

This marks the thirteenth year in a row that the percentage of universities with an overall red light rating has fallen, this year from 24.2% to 21.3%. The continued reduction in red light institutions is encouraging: Just over a decade ago, red light schools encompassed about 75% of the report’s findings.[7]

The number of green light institutions has continued to increase this year, from 50 to 56.
However, this year’s numbers also reveal an increase in yellow light institutions, as 63.9% of schools earned an overall yellow light last year, compared to 65.3% this year. While yellow light policies are not as clearly and substantially restrictive as red light policies on their face, they nevertheless impose impermissible restrictions on expression.

The number of green light institutions has continued to rise this year, from 50 institutions last year to 56 now.[8] At 11.7%, the percentage of green light schools is at an all-time high, with more than one million students across the country enrolled at green light colleges and universities.[9]

In total, 27 schools improved their overall ratings this year.[10]

Public Colleges and Universities

The percentage of public schools with a red light rating dropped again, from 18.3% last year to 14.5% this year. Overall, of the 372 public universities reviewed for this report, 54 received a red light rating (14.5%), 264 received a yellow light rating (71%), and 52 received a green light rating (14%).[11] As a result, public colleges and universities will soon reach a significant turning point: There are nearly the same number of public green light schools as public red light schools. As just nine public schools earned the green light rating a decade ago, this milestone reveals significant progress.

Red light ratings of public institutions dropped from 18.3% to 14.5% this year.
This year, FIRE was pleased to welcome Colorado Mesa University, Fayetteville State University, Florida State University, Jackson State University, and the University of Colorado Boulder to the list of green light institutions.

Notably, Florida State University and the University of Colorado Boulder bring more than 30,000 students each to the green light list. Both are flagship institutions in their state, a status we hope to leverage into further policy reform with other schools in their respective university systems.

In the coming year, FIRE will continue to work strategically to reform policies at public university systems across the country.

Private Colleges and Universities

Of the 106 private institutions reviewed by FIRE, 47 received a red light rating, 49 received a yellow light rating, 4 received a green light rating, and 6 earned a warning rating.
Of the 106 private colleges and universities reviewed, 47 received a red light rating (44.3%). 49 received a yellow light rating (46.2%), four received a green light rating (3.8%), and six earned a Warning rating (5.7%).

The percentage of private universities earning a red light rating, which stood at 44.8% last year, continued to decrease, coming in at 44.3% this year. This progress, albeit slight, is hard-earned given that private universities are not legally bound by the First Amendment, which regulates only government actors. For this reason, it is gratifying that these colleges are closer to fulfilling their institutional commitments to free expression.

FIRE will continue to work with private colleges and universities to improve policies so that they better meet institutional commitments to protecting students’ free speech rights.

Discussion

SPEECH CODES ON CAMPUS: BACKGROUND AND LEGAL CHALLENGES

Speech codes—university regulations prohibiting expression that would be constitutionally protected in society at large—gained popularity with college administrators in the 1980s and 1990s. As discriminatory barriers to education declined, female and minority enrollment increased. Concerned that these changes would cause tension and that students who finally had full educational access would arrive at institutions only to be offended by other students, college administrators enacted speech codes.

In the mid-1990s, the phenomenon of campus speech codes converged with the expansion of Title IX, the federal law prohibiting sex discrimination in educational institutions receiving federal funds.[12] Under the rationale of the obligation to prohibit discriminatory harassment, unconstitutionally overbroad harassment policies banning subjectively offensive conduct proliferated. (This Title IX enforcement history is covered in further detail in this report’s “Spotlight on: New Title IX Regulations” feature.)

In enacting speech codes, administrators ignored or did not fully consider the philosophical, social, and legal ramifications of placing restrictions on speech, particularly at public universities. As a result, federal courts have overturned speech codes at numerous colleges and universities over the past several decades.[13]

Despite the overwhelming weight of legal authority against speech codes, a large number of institutions—including some of those that have been successfully sued on First Amendment grounds—still maintain unconstitutional and illiberal speech codes. It is with this unfortunate fact in mind that we turn to a more detailed discussion of the ways in which campus speech codes violate individual rights and what can be done to challenge them.

PUBLIC UNIVERSITIES VS. PRIVATE UNIVERSITIES

With limited, narrowly defined exceptions, the First Amendment prohibits the government—including governmental entities such as state universities—from restricting freedom of speech. A good rule of thumb is that if a state law would be declared unconstitutional for violating the First Amendment, a similar regulation at a state college or university is likewise unconstitutional.

The guarantees of the First Amendment generally do not apply to students at private colleges because the First Amendment regulates only government conduct.[14] Moreover, although acceptance of federal funding does confer some obligations upon private colleges (such as compliance with federal anti-discrimination laws), compliance with the First Amendment is not one of them.

This does not mean, however, that students and faculty at all private schools are not entitled to free expression. In fact, most private universities explicitly promise freedom of speech and academic freedom in their official policy materials.

Middlebury College, for example, states in its student handbook that it “recognizes and affirms that free intellectual inquiry, debate, and constructive dialogue are vital to Middlebury’s academic mission and must be protected even when the views expressed are unpopular or controversial.”[15] Likewise, Princeton University, echoing the Chicago Statement, “guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn” and explains that “it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”[16] Yet both of these institutions, along with most other private colleges and universities, maintain policies that prohibit the very speech they promise to protect.[17]

This year, both private and public institutions, including statewide systems, have continued to adopt policy statements in support of free speech modeled after the one produced in January 2015 by the Committee on Freedom of Expression at the University of Chicago.[18] Since our last report, six more institutions have adopted policy statements in support of free speech modeled after the “Chicago Statement.” Notably, Colorado Mesa University adopted the Chicago Statement in conjunction with revising all of its speech codes to earn an overall green light rating, further underscoring its commitment to free speech.[19]

FIRE will continue to encourage institutions, private and public alike, to adopt a similar policy statement over the course of the next year.

WHAT EXACTLY IS “FREE SPEECH,” AND HOW DO UNIVERSITIES CURTAIL IT?

What does FIRE mean when we say that a university restricts “free speech”? Do people have the right to say absolutely anything, or are certain types of expression unprotected?

Simply put, the overwhelming majority of speech is protected by the First Amendment. Over the years, the Supreme Court has carved out a limited number of narrow exceptions to the First Amendment, including speech that incites reasonable people to immediate violence; so-called “fighting words” (face-to-face confrontations that lead to physical altercations); harassment; true threats and intimidation; obscenity; and defamation. If the speech in question does not fall within one of these exceptions, it most likely is protected.

The exceptions are often misapplied and abused by universities to punish constitutionally protected speech. There are instances where the written policy at issue may be constitutional—for example, a prohibition on “incitement”—but its application may not be. In other instances, a written policy will purport to be a legitimate ban on a category of unprotected speech like harassment or true threats, but (either deliberately or through poor drafting) will encompass protected speech as well. Therefore, it is important to understand what these narrow exceptions to free speech actually mean in order to recognize when they are being misapplied.

Threats and Intimidation

The Supreme Court has defined “true threats” as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”[20] The Court also has defined “intimidation,” of the type not protected by the First Amendment, as a “type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”[21]

Neither term would encompass, for example, a vaguely worded statement that is not directed at anyone in particular. Nevertheless, far too many institutions fail to properly define these legal standards in their written policies.

For example:

  • California State University – Monterey Bay defines threats as “[a]ny threat or action of physical, emotional, or verbal harm in any form.”[22]
  • Southern Illinois University at Carbondale’s student conduct code defines intimidation as “[i]mplied threats or acts that cause a reasonable fear of harm in another.”[23]
  • Southern Oregon University bans “[t]hreatening communication,” defined as “[t]hreats made online or through electronic communication with sufficient content such that it causes fear of injury or other harm.”[24]

Further, universities frequently misapply policies prohibiting threats and intimidation so as to infringe on protected speech, citing generalized concerns about safety with no regard to the boundaries of protected speech.

This year, Fordham University placed a student on probation over two social media posts, finding his actions constituted a violation of its “Threats / Intimidation” policy.[25] The student’s first post was a photo of retired St. Louis Police captain David Dorn, a police officer killed by looters during unrest following the killing of George Floyd, with the caption “Y’all a bunch of hypocrites.” In the second post, on the anniversary of the massacre at Tiananmen Square, he posted a photo of himself holding a gun in his backyard with the caption, “Don’t tread on me.”

In a letter to Fordham, FIRE explained that his conduct did not approach the actual legal standards for a true threat or intimidation:

It appears that Tong’s discipline is based on his benign photo of himself holding of a firearm and his apparent criticism of protests for racial justice in his post about David Dorn. However, neither of his Instagram posts approximate a threat of any sort. Neither post was directed at a specific individual or group of individuals, and neither post on its face or in context indicates Tong intended to engage in any form of violence. Fordham’s consideration of Tong’s social media post of him holding a gun and his comment on David Dorn to be a “threat” demonstrates an abandonment of any reasonable or fair understanding of the term.[26]

Tong sued Fordham, and the university argued in response that it has the “prerogative to limit a student’s free expression rights,”[27] despite repeatedly promising to protect students’ free speech in its policies.[28] As a result, the Department of Education sent a letter notifying Fordham that it is investigating whether the university has misrepresented its commitment to the protection of students’ expression.[29]

As Fordham’s treatment of Tong demonstrates, universities that are bound by the First Amendment or that promise their students free speech must revise their policies so that they track the applicable First Amendment legal standards, and must enforce the policies accordingly.

Incitement

There is also a propensity among universities to restrict speech that offends other students on the basis that it constitutes “incitement.” The basic concept, as administrators too often see it, is that offensive or provocative speech will anger those who disagree with it, perhaps so much so that it moves them to violence. While preventing violence is necessary, this is an impermissible misapplication of the incitement doctrine.

Incitement, in the legal sense, does not refer to speech that may lead to violence on the part of those opposed to or angered by it, but rather to speech that will lead those who agree with it to commit immediate violence. In other words, the danger is that certain speech will convince sympathetic, willing listeners to take immediate unlawful action.

The paradigmatic example of incitement is a person standing on the steps of a courthouse in front of a torch-wielding mob and urging that mob to burn down the courthouse immediately. Misapplying the doctrine to encompass an opposing party’s reaction to speech they dislike converts the doctrine into an impermissible “heckler’s veto,” where violence threatened by those angry about particular speech is used as a reason to censor that speech. As the Supreme Court has observed, speech cannot be prohibited because it “might offend a hostile mob” or because it may prove “unpopular with bottle throwers.”[30]

The legal standard for incitement was announced in the Supreme Court’s decision in Brandenburg v. Ohio.[31] There, the Court held that the state may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”[32] This is an exacting standard, as evidenced by its application in subsequent cases.

For instance, in Hess v. Indiana, the Supreme Court held that a man who had loudly stated “We’ll take the fucking street later” during an anti-war demonstration did not intend to incite or produce immediate lawless action.[33] The Court found that “at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time,” and that the man could therefore not be convicted under a state disorderly conduct statute.[34] The fact that the Court ruled in favor of the speaker despite the use of such strong and unequivocal language underscores the narrow construction that has traditionally been given to the incitement doctrine, and its dual requirements of likelihood and immediacy. Nonetheless, college administrations have been all too willing to abuse or ignore this jurisprudence, often using the term in policies in a colloquial manner.

For example:

  • The University of California system’s “intolerance report form” encourages students to report instances of “hate speech,” defined as “any speech, gesture or conduct, writing, or display that may incite violence or prejudicial action against someone” based on their actual or perceived personal characteristic.[35]
  • Western Illinois University bans public decorations in the residence halls that “are deemed to be racist, sexist, indecent, scandalous, illegal, inciting, or in any way oppressive in nature.”[36]
  • Indiana State University explains that prohibited harassment can be expressed or implied, “creating and/or inciting a foreseeable hostile environment.”[37]
Obscenity

The Supreme Court has held that obscene expression, to fall outside of the protection of the First Amendment, must “depict or describe sexual conduct” and must be “limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.”[38]

This is a narrow standard applicable only to certain highly graphic sexual material. It does not encompass profanity, even though profane words are often colloquially referred to as “obscenities.” In fact, the Supreme Court has explicitly held that profanity is constitutionally protected. In Cohen v. California, the defendant, Paul Robert Cohen, was convicted in California for wearing a jacket bearing the words “Fuck the Draft” in a courthouse.[39] The Supreme Court overturned Cohen’s conviction, holding that the message on his jacket, however vulgar, was protected speech.

Similarly, in Papish v. Board of Curators of the University of Missouri, the Court determined that a student’s expulsion for distributing a student newspaper containing an article titled “Motherfucker Acquitted” violated the First Amendment.[40] The Court wrote that “the 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.’”[41]

Nonetheless, many colleges erroneously believe that they may lawfully prohibit profanity and vulgar expression. For example:

  • Alabama A&M University bans “[i]ndecent, obscene, immoral behavior and/or profanity,” including “the use of obscene gestures” and “vulgar language.”[42]
  • The University of Louisiana at Lafayette’s conduct code prohibits “[p]ublic [p]rofanity,” defined as “[p]rofanity or abusive or foul language directed toward a person or persons.”[43]
  • Frostburg State University prohibits the placement of flyers in the residence halls “containing content that would be considered offensive to a reasonable person (e.g. nudity, obscenities, etc.).”[44]
Harassment

Hostile environment harassment, properly defined, is not protected by the First Amendment. In the educational context, the Supreme Court has defined student-on-student (or peer) harassment as discriminatory, unwelcome, and targeted conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[45]

This is not simply expression; it is conduct far beyond the protected speech that is too often deemed “harassment” on today’s college campus. For example, in Davis, the conduct found by the Court to constitute harassment was a months-long pattern of conduct including repeated attempts to touch the victim’s breasts and genitals, together with repeated sexually explicit comments directed at and about the victim.

For decades now, however, many colleges and universities have maintained policies defining harassment too broadly and prohibiting constitutionally protected speech.
Years of Title IX enforcement by the Department of Education’s Office for Civil Rights (OCR) that neglected to fully protect First Amendment rights, including an unconstitutionally broad definition of sexual harassment promulgated by OCR itself,[46] led numerous colleges and universities to enact overly restrictive harassment policies in an effort to avoid an OCR investigation.

On May 6, 2020, the Department of Education published new Title IX regulations that adopted the Supreme Court’s peer harassment standard from Davis, taking effect August 14, 2020. The regulations and emerging trends in universities’ compliance are discussed in further detail in this report’s “Spotlight on: New Title IX Regulations” feature.

Although the full impact of the regulations remains to be seen as of this writing, we expect university policies on harassment to generally improve. However, even where policies reasonably track the Supreme Court’s standard from Davis, problems remain. Many policies define harassment narrowly, then proceed to provide a list of examples of prohibited conduct that do not necessarily meet that standard when standing alone. Others provide multiple definitions of harassment, resulting in a policy scheme that is confusing for students and likely to have a chilling effect on expression.

Here are just a few examples of overly broad harassment policies:

  • Northwestern University’s harassment policy states: “Examples of harassment include offensive jokes related to a protected class; . . . name calling related to a protected class,” and “mockery connected to a protected class.”[47]
  • Portland State University’s policy defines sexual harassment as “unwelcome conduct of a sexual nature,” before labeling “sexual or derogatory comments” and “sending letters, notes, cartoons, emails, text or audio messages of a sexually suggestive nature” as examples of “inappropriate behavior.”[48]
  • Furman University goes so far as to warn students that the university “may address conduct that, although it does not rise to the level of constituting Sexual Misconduct as defined by this Policy, is nevertheless offensive and/or unwanted conduct of a sexual nature.”[49]

These examples, along with many others, demonstrate that colleges and universities often fail to limit themselves to the narrow definition of harassment that is outside the realm of constitutional protection. Instead, they expand the term to prohibit broad categories of speech that do not even approach actionable harassment, despite similar policies having been struck down by federal courts years earlier.[50]

Having discussed the most common ways in which universities misuse the narrow exceptions to the First Amendment to prohibit protected expression, we now turn to the innumerable other types of university regulations that restrict free speech on their face. Such restrictions are generally found in several distinct types of policies.

Anti-Bullying Policies

Over the past decade, FIRE has found that numerous colleges and universities have adopted policies on “bullying” and “cyberbullying.” On October 26, 2010, OCR issued a letter on the topic of bullying, reminding educational institutions that they must address actionable harassment, but also acknowledging that “[s]ome conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression.”[51] For such situations, OCR’s letter refers readers back to the 2003 “Dear Colleague” letter stating that harassment is conduct that goes far beyond merely offensive speech and expression. However, because it is primarily focused on bullying in the K–12 setting, the 2010 letter also urges an in loco parentis[52] approach that is inappropriate in the college setting, where students are overwhelmingly adults.[53]

Court decisions and other guidance regarding student speech in the K–12 setting often “trickle up” to the collegiate setting, and indeed, FIRE has come across numerous university policies prohibiting bullying in a problematic manner. For example:

  • Western Michigan University defines bullying as “[r]epeated and/or severe aggressive behavior likely to intimidate or intentionally hurt, control or diminish another person, physically or mentally.”[54] The policy goes on to list as examples of bullying “creating web pages with a negative focus; posting insults on social networking sites; and/or spreading rumors with malicious intent.”[55]
  • Howard University’s student handbook defines bullying as “[u]nwanted, aggressive and/or hostile behavior” that involves a power imbalance and is “intended to humiliate” another individual or group.[56] The policy makes clear that bullying “can be one single act” and states that examples include “spreading rumors” and “marginalizing and/or excluding someone from a group, event or activity.”[57]
  • At Towson University, “[c]yberbullying” is defined as conduct that has the effect of “intimidating; humiliating; harassing; harming; embarrassing; or damaging person(s) or organization(s).”[58]

But as courts have held in rulings spanning decades, speech cannot be prohibited simply because someone else finds it offensive, even deeply so.[59] Offensive speech, if it does not rise to the level of harassment or one of the other narrow categories of unprotected speech and conduct, is entitled to constitutional protection (and, accordingly, to protection at private institutions that claim to uphold the right to free speech).

Policies on Tolerance, Respect, and Civility

Many schools invoke laudable goals like respect and civility to justify policies that violate students’ free speech rights. While a university has every right to promote a tolerant and respectful atmosphere on campus, a university that claims to respect free speech must not limit discourse to only the inoffensive and respectful. And although pleas for civility and respect are often initially framed as requests, many schools have speech codes that effectively turn those requests into requirements.

For example:

  • Boston College’s information technology use policy states: “Communications from members of the University community are to reflect mutual respect, civility, and other moral standards.” The policy specifically bans “[t]he use of obscene or intolerant language, and the use of similarly offensive graphic or video images,” and notes that “[t]he determination of what is obscene, offensive, or intolerant is within the sole discretion of the University.”[60]
  • At Boise State University, students are informed that “[m]embership in the campus community is a privilege and requires its members to conduct themselves ethically with integrity and civility,” which includes “adhere[nce] to the principles of civil discourse.”[61]
  • Georgetown University bans “[i]ncivility,” broadly defined as “[e]ngaging in behavior, either through language or actions, which disrespects another individual.”[62]

While respect and civility may seem uncontroversial, most uncivil or disrespectful speech is protected by the First Amendment, and is indeed sometimes of great political and social significance. Some of the expression employed in the civil rights movement of the 1950s and ’60s, for example, would violate campus civility codes today. Colleges and universities may encourage civility, but public universities—and those private universities that purport to respect students’ fundamental free speech rights—may not require it or threaten mere incivility with disciplinary action.

Internet Usage Policies

University policies regulating online expression, while perhaps appearing to be narrow, can have a significant impact on students’ and faculty members’ free speech rights, given the prevalence of online communication on today’s college campuses.

Examples of impermissibly restrictive Internet usage policies include the following:

  • Drexel University calls the use of “offensive language” an abuse of email privileges that could result in “de-activation of the account (for minor first offenses) through university judicial action or referral to law enforcement authorities.”[64]
  • At Carleton College, students are prohibited from “distributing material which is demeaning.”[65] Carleton’s policy also bans using information technology resources for “political purposes.”[66]
  • The College of the Holy Cross informs students that “[o]bscene or intolerant language, as well as offensive images” are prohibited, and makes clear “[t]he determination of what is obscene, offensive or intolerant is within the sole discretion of the College.[67]

As campuses shifted to online learning during the COVID-19 pandemic this year, the concerns presented by problematic speech codes governing online expression were amplified. Indeed, FIRE recently released a report focusing on the recent surge in online censorship.[68]

To take one recent example, at Stockton University, a student faced a litany of charges, including “Disruptive Behavior,” “Discrimination,” and “Harassment,” over using a photograph of President Donald Trump as his Zoom background and posting a political message on Facebook.[69] Stockton’s incident report explained that the background made members of his class feel “offended, disrespected, and taunted.”[70]

Just as speech that occurs in the public square may not be sanctioned merely because it has made others feel “offended, disrespected, and taunted,” online speech may not be restricted on those bases alone.

Policies on Bias and Hate Speech

In recent years, colleges and universities around the country have instituted policies and procedures specifically aimed at eliminating “bias” and “hate speech” on campus.[71] These sets of policies and procedures, frequently termed “Bias Reporting Protocols” or “Bias Incident Protocols,” often include bans on protected expression. For example:

  • Grinnell College defines a “bias-motivated incident” as “an expression of hostility toward, a person, group, or property thereof” because of an individual or group’s identifying or perceived characteristic. The College warns: “Since these behaviors are not reflective of our Community Standards, student(s) found responsible for bias-related charges may face outcomes up to and including suspension, dismissal or degree withdrawal.”[72]
  • Bates College lists the following as examples of bias incidents: “hate speech,” “sexist jokes or cartoons,” and “disparaging remarks on social media sites.” Students are told to report such incidents in order to assist the college in “addressing behaviors that are antithetical to our community values.” [73]
  • DePauw University states: “Not all bias incidents constitute harassment under these policies. However, even if a bias incident does not constitute harassment, we can and will respond to address hurtful behavior and to support the targeted individual or group.”[74]

While speech or expression that is based on a speaker’s bias may be subjectively offensive, it is protected under First Amendment standards unless it rises to the level of unlawful conduct like harassment. Some bias reporting policies acknowledge the distinction between unlawful conduct, like hate crimes or harassment, and bias-related incidents. However, many of these policies nonetheless encourage students to report such broadly defined bias incidents, and reserve the right to take action against incidents that do not constitute unlawful behavior or unprotected speech.

Bias incident protocols also often infringe on students’ right to due process by allowing for anonymous reporting that denies students the right to confront their accusers. Moreover, universities are often heavily invested in these bias incident policies, having set up extensive regulatory frameworks and response protocols devoted solely to addressing them.

Although some bias incident protocols do not include a separate enforcement mechanism, the mere threat of a bias investigation will likely be sufficient to chill speech on controversial issues. Indeed, the United States Court of Appeals for the Sixth Circuit recently held that, even though it lacked the power to punish students independently, the University of Michigan’s former “Bias Response Team” policy was likely to chill the speech of students because “the invitation from the Response Team to meet could carry an implicit threat of consequence should a student decline the invitation.”[75] As a part of a settlement agreement,[76] the university replaced its Bias Response Team with a “Campus Climate Support” program. The new policy makes its purpose—to provide support, rather than to investigate or punish protected speech—clear: “CCS is not a disciplinary body, cannot impose discipline, and does not require participation in any aspect of CCS’s work.”[77]

Overbroad bias reporting policies must be revised so that they narrowly target unlawful conduct, or to make clear they exist for purposes of providing support for affected individuals.

Policies Governing Speakers, Demonstrations, and Rallies

Universities may enact reasonable, narrowly tailored “time, place, and manner” restrictions that prevent demonstrations and other expressive activities from unduly interfering with the educational process.[78] They may not, however, regulate speakers and demonstrations on the basis of content or viewpoint, nor may they maintain regulations that burden substantially more speech than is necessary to maintain an environment conducive to education. Such regulations can take several forms, as discussed in the sections below.

Security Fee Policies

In recent years, FIRE has seen a number of colleges and universities hamper—whether intentionally or just through a misunderstanding of the law—the invitation of controversial campus speakers by levying additional security costs on the sponsoring student organizations.

The Supreme Court addressed a very similar issue in Forsyth County v. Nationalist Movement, where it struck down an ordinance in Georgia that permitted the local government to set varying fees for events based upon how much police protection the event would need.[79] Invalidating the ordinance, the Court wrote that “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.”[80] Deciding that such a determination required county administrators to “examine the content of the message that is conveyed,” the Court wrote that “[l]isteners’ reaction to speech is not a content-neutral basis for regulation. . . . Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”[81]

Despite this precedent, the impermissible use of security fees to burden controversial speech is all too common on university campuses:

  • At Evergreen State College, factors that are considered in evaluating risk and determining security needs include the “topic” of the event and the “history of the performer.”[82] If extra security is deemed necessary by the university, “this additional cost will be the responsibility of the event sponsor.”[83]
  • Bridgewater State University informs students that users of facilities will be billed for “extraordinary staff support needs arising from the particular nature of the event.”[84]
  • The State University of New York – New Paltz chillingly states: “Where a controversial speaker is likely to engender demonstrations from other student groups, the sponsoring organization must recognize the rights of other groups and consider the impact of inviting each speaker on the orderly and lawful functioning of the College.”
Prior Restraints

The Supreme Court has held that “[i]t is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.”[85] Yet many colleges and universities enforce prior restraints, requiring students and student organizations to register their expressive activities well in advance and, often, to obtain administrative approval for those activities. For example:

  • Virginia State University’s student handbook prohibits “[u]nauthorized assembly, demonstrations, or acts of picketing of any kind” as “Disorderly Conduct,” explaining that all “assemblies, demonstrations, and similar acts must have prior approval and be registered.”[86]
  • Students wishing to conduct a demonstration at Rensselaer Polytechnic Institute must submit an application to the dean of students’ office “at least seven (7) days prior to the proposed demonstration date” for approval.[87]
  • Students on Kean University’s campus can’t even hand out flyers without “submitting a formal request online . . . at least five (5) business days prior to the requested use.”[88]
Free Speech Zone Policies

Of the 478 schools surveyed for this report, 34 institutions (7.1%) enforce “free speech zone” policies—policies limiting student demonstrations and other expressive activities to small and often out-of-the-way areas on campus.[89] This number represents a significant improvement over the course of the past decade: a 2013 FIRE survey of the institutions covered in this report found that 16.4%—over double the percentage today—maintained such policies.[90] This positive shift can be traced in large part to FIRE’s litigation and legislative efforts.

Over the past several years, free speech zones have repeatedly been struck down by courts or voluntarily revised by colleges as part of settlements to lawsuits brought by students. FIRE’s Stand Up For Speech Litigation Project has mounted successful challenges to free speech zone policies at eight colleges.[91] Most recently, the Los Angeles Community College District agreed to settle a lawsuit brought after an administrator told a student his rights were restricted to a tiny free speech zone on the Los Angeles Pierce College campus. As the largest community college district in the country, this victory for the Stand Up For Speech Litigation Project restored free speech rights to roughly 150,000 students.[92]

Additionally, state legislatures have continued to take action to prohibit public colleges and universities from maintaining free speech zones. Currently, seventeen states have enacted laws prohibiting these restrictive policies: Virginia, Missouri, Arizona, Kentucky, Colorado, Utah, North Carolina, Tennessee, Florida, Georgia, Louisiana, Arkansas, South Dakota, Iowa, Alabama, Oklahoma, and Texas. In doing so, several states utilized FIRE’s model legislation.

Due to FIRE’s efforts in litigation and legislation, as well as our continued policy reform work, free speech zones have declined dramatically over the past decade. In spite of this progress, too many universities still maintain free speech zones. Despite being inconsistent with the First Amendment, free speech zones are more common at public universities than at private universities: 8.1% of public universities surveyed maintain free speech zones, while just 3.8% of private universities that promise their students free speech rights do.

Examples of current free speech zone policies include the following:

  • Eastern Illinois University restricts the distribution of written materials to a single area on campus, which it accurately and candidly calls the “Free Speech Zone.” [93] The policy also provides that the university and registered student organizations may reserve this area for events, presenting the concern that other students wishing to hand out flyers may not be able to do so if this area has been previously reserved.[94]
  • The University of California – Riverside provides that all persons may use “[a]reas open to the public generally” for expressive activity, but those areas are defined exceedingly narrowly as “the outdoor paved walkways on the campus.”[95] If an activity is “pre-advertised” or can be expected to attract a crowd of over 25 people, it is limited to either “the Tower Mall or Speaker’s Mound area.”[96]
  • At Vanderbilt University, students may only hand out written materials “on Rand Terrace or outside the building in which a meeting has been scheduled by another organization, if the distributors position themselves twenty feet from the entrance and so as to avoid restricting access.”[97]

Although free speech zone policies are indeed being steadily revised across the country, they continue to pose problems for students’ expressive activities.

What Can Be Done?

The good news is that the types of restrictions discussed in this report can be reformed. Students and faculty members can be a tremendously effective advocates for change when they are aware of their expressive rights and willing to engage administrators in their defense. FIRE provides a number of resources to assist advocates and administrators in revising speech codes, including our Model Code of Student Conduct.[98] The Model Code includes provisions regarding prohibited conduct that would all earn green light ratings, as well as student conduct procedures and procedural safeguards that comply with the Department of Education’s recent Title IX regulations.

Unconstitutional policies also can be defeated in court, especially at public universities, where speech codes have been struck down in federal courts across the country. Many more such policies have been revised in favor of free speech as the result of legal settlements.

Any speech code in force at a public university is vulnerable to a constitutional challenge. Moreover, as speech codes are consistently defeated in court, administrators cannot credibly argue that they are unaware of the law, which means that they may be held personally liable when they are responsible for their schools’ violations of constitutional rights.[99]

The suppression of free speech at institutions of higher education is a matter of national concern. But, by working together with universities to revise restrictive speech codes and to reaffirm commitments to free expression, we can continue to make strides toward campuses that truly embody the “marketplace of ideas” that such institutions are meant to be in our society.

Spotlight On: New Title IX Regulations

Conduct that constitutes hostile environment harassment, as legally defined, isn’t protected by the First Amendment, but colleges all too often miss the mark when drafting harassment policies. In fact, harassment policies earn FIRE’s worst, red light rating more frequently than any other type of policy in the Spotlight database, with 68 schools currently maintaining a policy that earns the rating.[100]

In Davis v. Monroe County Board of Education, the Supreme Court defined student-on-student (or peer) harassment in the educational setting as discriminatory, unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”[101] In other words, harassment is extreme and repetitive behavior—behavior so serious that it would interfere with a reasonable person’s ability to receive their education. However, most colleges have adopted a broader standard, putting protected speech at risk of punishment.

To understand why universities so commonly fail to define harassment properly, it helps to take a look back through the past decade of Title IX enforcement.

In 2013, the U.S. Department of Education’s Office for Civil Rights (OCR) and the Department of Justice issued a joint findings letter announcing a resolution agreement with the University of Montana, following an investigation into the university’s Title IX policies and practices.[102] The letter described this agreement as “a blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault,” and defined sexual harassment as “any unwelcome conduct of a sexual nature,” including “verbal conduct.”[103]

Under this broad, “blueprint” definition of sexual harassment, which fails to incorporate the critical “severe, pervasive, and objectively offensive” components from the Davis standard, a single instance of subjectively offensive verbal conduct (i.e., speech, such as an off-color joke) could be considered punishable harassment.

OCR later backed away from the term “blueprint” in a letter to FIRE, in which it explained that “the agreement in the Montana case represents the resolution of that particular case and not OCR or DOJ policy,”[104] but the damage caused by the promotion of this definition had already been done. Many universities across the country had adopted it as their controlling standard for peer harassment, or had added it to existing policies, presenting students with a confusing array of definitions at a single school.

After years of pushback from FIRE and other civil liberties groups, OCR finally reversed course. On May 6, 2020, the agency announced new regulations that, among other important reforms regarding procedural safeguards, adopt the standard from Davis for Title IX sexual harassment. Those regulations took effect August 14, 2020.[105]

The colleges and universities analyzed in this report were reviewed incrementally over the course of the past year, from October 2019 to September 2020. Thus, we have only seen the impact of the regulations on schools that were updated since they went into effect. However, we have already identified a few trends in how schools have responded to the regulations.

First, some schools have missed the effective date of the regulations entirely. For example, Murray State University notes that the revision of its “Sexual Harassment Policy” is pending final approval in December 2020 by its board of regents.[106] Most universities have a process for expediting the adoption of a policy on an interim basis, but evidently 100 days (from May 6, when the regulations were released, to the effective date on August 14) was not sufficient for Murray State. Instead, the university will wait a total of 209 days before revising its policy. In the interim, Murray State has not added the definition of harassment from the regulations to its Title IX webpage or any other location on its website.[107]

The majority of schools, however, have unfortunately adopted what FIRE is calling a “dual-track approach” to reaching policy compliance. While these schools adopted the regulations’ definition of sexual harassment for Title IX cases, they also maintain a broader sexual harassment definition for other types of cases.[108]

For example, the State University of New York at Fredonia adopted a “Title IX Grievance Policy” that incorporates the definition from the regulations. However, the policy also provides that “SUNY Fredonia remains committed to addressing any violations of its policies, even those not meeting the narrow standards defined under the Title IX Final Rule,” and that “the institution retains authority to investigate and adjudicate the allegations under the policies and procedures defined within the Code of Conduct through a separate grievance proceeding.”[109]

This “Code of Conduct” policy in turn references the university’s “Sexual Harassment Policy,” which provides the “blueprint” definition of sexual harassment discussed earlier.[110] Thus, with both the speech-protective definition from the regulations and this broader definition in place, students at SUNY Fredonia are still at risk of being punished for engaging in protected speech.

The results thus far are not all negative. Some schools have adopted the definition of sexual harassment from the regulations in their policies across the board. For example, West Virginia University previously banned “severe or pervasive” conduct in defining hostile environment harassment, rather than requiring that conduct be both “severe” and “pervasive,” as per the standard from Davis.[111] Now, that hostile environment definition has been revised to fully track the regulations, requiring both severity and pervasiveness in not only Title IX cases, but also cases of hostile environment harassment based on other protected characteristics.[112]

And even where schools haven’t adopted the Davis standard across all policies, revising policies pursuant to the regulations has resulted in significant improvements. Wichita State University, for one, improved from an overall red light rating to an overall yellow light rating by removing its blueprint sexual harassment policy and replacing it with one that adopts the definition from the regulations.[113] The university still maintains a harassment provision in its student code of conduct that defines harassment more broadly than the regulations, but the removal of the blueprint definition is an important victory for free speech rights.[114]

At the time of this writing, it is difficult to be sure of the future of the Department of Education’s regulations. Thus, civil liberties advocates must continue to be diligent in identifying threats to free expression presented by overbroad harassment policies.

Whether or not the Title IX regulations remain in place, schools will need to be urged into compliance, watched to make sure they don’t adopt additional, conflicting policies, and monitored to ensure that the application of such policies does not infringe on student rights. FIRE will continue to do so, regardless of what the future holds for these regulations.

Appendix A: Schools by Rating

Red LightRed Light

Adams State University
Alabama A&M University
Barnard College
Bates College
Boston College
Boston University
California State University – Dominguez Hills
California State University – Fresno
California State University – Monterey Bay
Carleton College
Case Western Reserve University
Cheyney University of Pennsylvania
Chicago State University
Clark University
Clemson University
Coastal Carolina University
Colby College
Colgate University
College of the Holy Cross
Connecticut College
Dakota State University
Davidson College
Delaware State University
DePauw University
Dickinson College
Drexel University
Eastern Illinois University
Evergreen State College
Fordham University
Fort Lewis College
Framingham State University
Furman University
Georgetown University
Grinnell College
Harvard University
Harvey Mudd College
Howard University
Johns Hopkins University
Kean University
Lafayette College
Lake Superior State University
Lehigh University
Lewis-Clark State College
Lincoln University
Louisiana State University – Baton Rouge
Macalester College
Marquette University
Middlebury College
Mount Holyoke College
Murray State University
Northeastern University
Northern Vermont University
Northwestern University
Portland State University
Princeton University
Reed College
Rensselaer Polytechnic Institute
Rice University
Santa Clara University
Shawnee State University
Southern Illinois University at Carbondale
Southern Illinois University Edwardsville
Southern Oregon University
St. Olaf College
State University of New York – Fredonia
State University of New York – New Paltz
Stevens Institute of Technology
Tennessee State University
The College of New Jersey
Troy University
Tufts University
Tulane University
Union College
University of Alaska Anchorage
University of Alaska Fairbanks
University of Central Missouri
University of Central Oklahoma
University of Colorado Denver
University of Houston
University of Houston-Downtown
University of Illinois at Chicago
University of Louisiana Lafayette
University of Massachusetts at Dartmouth
University of Massachusetts at Lowell
University of Miami
University of Notre Dame
University of Southern California
University of Texas at Arlington
University of Texas at Austin
University of Texas at Dallas
University of Tulsa
University of Wisconsin – Oshkosh
University of Wyoming
Utah State University
Valdosta State University
Villanova University
Virginia State University
Western Illinois University
Western Michigan University
William Paterson University
Winston-Salem State University
Worcester Polytechnic Institute

Yellow LightYellow Light

Alabama State University
American University
Angelo State University
Arkansas State University
Athens State University
Auburn University Montgomery
Ball State University
Bard College
Baruch College
Bemidji State University
Black Hills State University
Bloomsburg University of Pennsylvania
Boise State University
Bowdoin College
Bowling Green State University
Brandeis University
Bridgewater State University
Brooklyn College, City University of New York
Brown University
Bryn Mawr College
Bucknell University
California Institute of Technology
California Maritime Academy
California Polytechnic State University
California State Polytechnic University, Pomona
California State University – Bakersfield
California State University – Channel Islands
California State University – Chico
California State University – East Bay
California State University – Fullerton
California State University – Long Beach
California State University – Los Angeles
California State University – Northridge
California State University – Sacramento
California State University – San Bernardino
California State University – San Marcos
California State University – Stanislaus
California University of Pennsylvania
Cameron University
Carnegie Mellon University
Central Connecticut State University
Central Michigan University
Central Washington University
Centre College
Christopher Newport University
Clarion University of Pennsylvania
College of Charleston
Colorado College
Colorado School of Mines
Colorado State University
Colorado State University Pueblo
Columbia University
Cornell University
Dartmouth College
East Stroudsburg University of Pennsylvania
East Tennessee State University
Eastern Michigan University
Eastern New Mexico University
Eastern Washington University
Elizabeth City State University
Ferris State University
Fitchburg State University
Florida A&M University
Florida Atlantic University
Florida Gulf Coast University
Florida International University
Fort Hays State University
Franklin & Marshall College
Frostburg State University
George Washington University
Georgia Gwinnett College
Georgia Institute of Technology
Georgia Southern University
Georgia State University
Gettysburg College
Governors State University
Grambling State University
Grand Valley State University
Hamilton College
Haverford College
Henderson State University
Humboldt State University
Hunter College, City University of New York
Idaho State University
Illinois State University
Indiana State University
Indiana University – Bloomington
Indiana University – Kokomo
Indiana University – Purdue University Columbus
Indiana University – Purdue University Indianapolis
Indiana University of Pennsylvania
Indiana University South Bend
Indiana University, East
Indiana University, Northwest
Indiana University, Southeast
Iowa State University
Jacksonville State University
James Madison University
Kennesaw State University
Kent State University
Kentucky State University
Kenyon College
Kutztown University of Pennsylvania
Lock Haven University of Pennsylvania
Longwood University
Louisiana Tech University
Mansfield University of Pennsylvania
Marshall University
Massachusetts College of Liberal Arts
Massachusetts Institute of Technology
Metropolitan State University
Metropolitan State University of Denver
Miami University of Ohio
Michigan State University
Middle Georgia State University
Middle Tennessee State University
Millersville University of Pennsylvania
Missouri State University
Missouri University of Science & Technology
Montana State University
Montana Tech of the University of Montana
Montclair State University
Morehead State University
New College of Florida
New Jersey Institute of Technology
New Mexico State University
New York University
Nicholls State University
Norfolk State University
North Carolina A&T State University
North Dakota State University
Northeastern Illinois University
Northern Illinois University
Northern Kentucky University
Northern Michigan University
Northwestern Oklahoma State University
Northwestern State University
Oakland University
Oberlin College
Occidental College
Ohio University
Oklahoma State University – Stillwater
Old Dominion University
Pennsylvania State University – University Park
Pittsburg State University
Pitzer College
Pomona College
Radford University
Rhode Island College
Rogers State University
Rowan University
Rutgers University – New Brunswick
Saginaw Valley State University
Saint Cloud State University
Salem State University
Sam Houston State University
San Diego State University
San Francisco State University
San Jose State University
Scripps College
Sewanee, The University of the South
Skidmore College
Slippery Rock University of Pennsylvania
Smith College
Sonoma State University
South Dakota State University
Southeast Missouri State University
Southeastern Louisiana University
Southern Connecticut State University
Southern Methodist University
Southern Utah University
Southwest Minnesota State University
Stanford University
State University of New York – Binghamton
State University of New York – Oswego
State University of New York – Albany
State University of New York – University at Buffalo
State University of New York College of Environmental Science and Forestry
Stockton University
Stony Brook University
Swarthmore College
Syracuse University
Tarleton State University
Temple University
Tennessee Technological University
Texas Southern University
Texas State University – San Marcos
Texas Tech University
Texas Woman’s University
The City College of New York
The Ohio State University
The University of Virginia’s College at Wise
Towson University
Trinity College
University of Akron
University of Alabama
University of Alabama at Birmingham
University of Alabama in Huntsville
University of Alaska Southeast
University of Arkansas – Fayetteville
University of California Berkeley
University of California Davis
University of California Irvine
University of California Merced
University of California Riverside
University of California San Diego
University of California Santa Barbara
University of California Santa Cruz
University of Central Arkansas
University of Central Florida
University of Cincinnati
University of Connecticut
University of Delaware
University of Denver
University of Georgia
University of Hawaii at Manoa
University of Hawaii Hilo
University of Idaho
University of Illinois at Springfield
University of Illinois at Urbana-Champaign
University of Iowa
University of Kansas
University of Kentucky
University of Maine
University of Maine at Fort Kent
University of Maine Presque Isle
University of Mary Washington
University of Massachusetts – Amherst
University of Massachusetts – Boston
University of Memphis
University of Michigan – Ann Arbor
University of Michigan – Dearborn
University of Michigan – Flint
University of Minnesota – Morris
University of Minnesota – Twin Cities
University of Missouri – Columbia
University of Missouri-Kansas City
University of Missouri-St. Louis
University of Montana
University of Montana Western
University of Montevallo
University of Nebraska – Lincoln
University of Nebraska Omaha
University of Nevada, Las Vegas
University of Nevada, Reno
University of New Mexico
University of New Orleans
University of North Alabama
University of North Carolina at Asheville
University of North Carolina School of the Arts
University of North Georgia
University of North Texas
University of Northern Colorado
University of Northern Iowa
University of Oklahoma
University of Oregon
University of Pennsylvania
University of Pittsburgh
University of Rhode Island
University of Richmond
University of Rochester
University of South Alabama
University of South Carolina Columbia
University of South Dakota
University of South Florida
University of South Florida at Saint Petersburg
University of Southern Indiana
University of Southern Maine
University of Texas at El Paso
University of Texas at San Antonio
University of Texas at Tyler
University of Texas Rio Grande Valley
University of Toledo
University of Utah
University of Vermont
University of Washington
University of West Alabama
University of West Florida
University of West Georgia
University of Wisconsin – Eau Claire
University of Wisconsin – Green Bay
University of Wisconsin – La Crosse
University of Wisconsin – Madison
University of Wisconsin – Stout
University of Wisconsin Milwaukee
Utah Valley University
Vanderbilt University
Virginia Commonwealth University
Virginia Polytechnic Institute and State University
Wake Forest University
Washington & Lee University
Washington State University
Washington University in St. Louis
Wayne State University
Weber State University
Wellesley College
Wesleyan University
West Chester University of Pennsylvania
West Virginia University
Western Kentucky University
Western Oregon University
Western Washington University
Westfield State University
Whitman College
Wichita State University
Williams College
Winona State University
Worcester State University
Wright State University
Yale University
Youngstown State University

Green LightGreen Light

Alcorn State University
Appalachian State University
Arizona State University
Auburn University
Claremont McKenna College
Cleveland State University
Colorado Mesa University
Delta State University
Duke University
East Carolina University
Eastern Kentucky University
Edinboro University of Pennsylvania
Emory University
Fayetteville State University
Florida State University
George Mason University
Jackson State University
Kansas State University
Keene State College
McNeese State University
Michigan Technological University
Mississippi State University
North Carolina Central University
North Carolina State University
Northern Arizona University
Oregon State University
Plymouth State University
Purdue University
Purdue University Fort Wayne
Purdue University Northwest
Shippensburg University
State University of New York – Brockport
State University of New York – Plattsburgh
Texas A&M University
The College of William & Mary
University of Arizona
University of California Los Angeles
University of Chicago
University of Colorado at Boulder
University of Florida
University of Louisville
University of Maryland – College Park
University of Mississippi
University of New Hampshire
University of North Carolina – Pembroke
University of North Carolina Chapel Hill
University of North Carolina Charlotte
University of North Carolina Greensboro
University of North Carolina Wilmington
University of North Dakota
University of North Florida
University of Southern Mississippi
University of Tennessee Knoxville
University of Virginia
Western Carolina University
Western Colorado University

Warning SchoolsWarning

Baylor University
Brigham Young University
Pepperdine University
Saint Louis University
United States Military Academy
United States Naval Academy
Vassar College
Yeshiva University

Appendix B: Rating Changes, 2019-2020 Academic Year

School 2018-2019 Rating 2019-2020 Rating
Boise State University Red Yellow
College of Charleston Red Yellow
Colorado Mesa University Yellow Green
Dartmouth College Red Yellow
Emory University Red Green
Fayetteville State University Yellow Green
Florida State University Red Green
Georgia Southern University Red Yellow
Governors State University Red Yellow
Harvey Mudd College Yellow Red
Idaho State University Red Yellow
Jackson State University Yellow Green
Morehead State University Red Yellow
New Jersey Institute of Technology Red Yellow
Northern Illinois University Red Yellow
Northwestern University Yellow Red
Oklahoma State University – Stillwater Red Yellow
Rice University Yellow Red
Shawnee State University Yellow Red
Southeastern Louisiana University Red Yellow
Southern Utah University Red Yellow
State University of New York – Albany Red Yellow
Syracuse University Red Yellow
University of Alabama at Birmingham Red Yellow
University of Colorado at Boulder Yellow Green
University of Montana Red Yellow
University of New Orleans Red Yellow
University of North Texas Red Yellow
University of South Carolina Columbia Red Yellow
University of Texas at Arlington Yellow Red
Valdosta State University Yellow Red
Western Michigan University Yellow Red
Whitman College Red Yellow
Wichita State University Red Yellow
Winston-Salem State University Yellow Red

Appendix C: Schools at Which a Faculty or Administrative Body has Adopted a Version of the ‘Chicago Statement’

Note: Some of the institutions on this list are not rated as part of the Spotlight database at this time and thus do not fall within this report’s speech code analysis. However, they have been included here in order to provide a full list of the institutions at which the administration, faculty body, or university system has adopted a version of the Chicago Statement. Institutions not rated in the Spotlight database are denoted with an asterisk.

Adrian College*
American University
Amherst College
Appalachian State University
Arizona State University
Ashland University*
Ball State University
Board of Regents, State of Iowa
Brandeis University
California State University – Channel Islands
Case Western Reserve University
Chapman University*
Christopher Newport University
Claremont McKenna College
Clark University
Cleveland State University
Colgate University
Colorado Mesa University
Columbia University
Denison University*
Eckerd College*
Franklin & Marshall College
George Mason University
Georgetown University
Gettysburg College
Jacksonville State University
Johns Hopkins University
Joliet Junior College*
Kansas State University
Kenyon College
Kettering University*
Louisiana State University System
Miami University of Ohio
Michigan State University
Middle Tennessee State University
Nevada System of Higher Education
Northern Illinois University
Ohio University
Ohio Wesleyan University*
Princeton University
Purdue University
Ranger College*
Smith College
Snow College*
South Dakota University System
State University of New York – University at Buffalo
State University System of Florida
Stetson University*
Suffolk University*
Tennessee Technological University
The Citadel*
The City University of New York
University of Alabama System
University of Arizona
University of Arkansas at Little Rock*
University of Colorado System
University of Denver
University of Louisiana System
University of Maine System
University of Maryland
University of Minnesota
University of Missouri System
University of Montana
University of Nebraska
University of North Carolina – Chapel Hill
University of Southern Indiana
University of Texas at San Antonio
University of Toledo
University of Virginia College at Wise
University of Wisconsin System
Utica College*
Vanderbilt University
Washington and Lee University
Washington University in St. Louis
Winston-Salem State University
Winthrop University*

Appendix D: Schools with ‘Free Speech Zones’

Auburn University Montgomery
Ball State University
Bemidji State University
Bridgewater State University
California State University – Dominguez Hills
California State University – Los Angeles
California State University – Sacramento
East Tennessee State University
Eastern Illinois University
Elizabeth City State University
Grambling State University
Kentucky State University
Montclair State University
Morehead State University
Northwestern State University
Occidental College
Rutgers University – New Brunswick
Saint Cloud State University
Southern Illinois University at Carbondale
Stanford University
Texas Southern University
The College of New Jersey
Tulane University
University of Alabama in Huntsville
University of California Riverside
University of Illinois at Urbana-Champaign
University of Iowa
University of Massachusetts at Dartmouth
University of Nebraska – Lincoln
University of North Carolina School of the Arts
University of South Carolina Columbia
University of Southern Indiana
University of West Alabama
Vanderbilt University

Notes

[1] See FIRE statement on COVID-19 restrictions on expressive and associational rights, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (Sept. 8, 2020), thefire.org/fire-statement-on-covid-19-restrictions-on-expressive-and-associational-rights.
[2] Adam Steinbaugh, This has been FIRE’s busiest summer ever. What happened?, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (Sept. 14, 2020), thefire.org/this-has-been-fires-busiest-summer-ever-what-happened.
[3] See, e.g., Gooding v. Wilson, 405 U.S. 518, 519, 528 (1972) (holding that a Georgia statute prohibiting “opprobrious words or abusive language” was unconstitutional because those terms, as commonly understood, encompass speech protected by the First Amendment). Under this and related precedents, a public university maintaining a ban on “verbal abuse” and similar expression would be constitutionally deficient.
[4] For example, Brigham Young University’s “Church Educational System Honor Code” provides: “Brigham Young University and other Church Educational System institutions exist to provide an education in an atmosphere consistent with the ideals and principles of The Church of Jesus Christ of Latter-day Saints. . . . By accepting appointment, continuing in employment, being admitted, or continuing class enrollment, each member of the BYU community personally commits to observe these Honor Code standards approved by the Board of Trustees . . . including the avoidance of profane and vulgar language.” Church Educational System Honor Code, BRIGHAM YOUNG UNIV., policy.byu.edu/view/index.php?p=26 (last visited Oct. 7, 2020). It would be clear to any reasonable person reading this policy that students are not entitled to unfettered free speech at BYU.
[5] FIRE has designated the following colleges and universities as “Warning” schools: Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, the United States Military Academy, the United States Naval Academy, Vassar College, and Yeshiva University.
[6] See Appendix A for a full list of schools by rating.
[7] All of FIRE’s previous Spotlight on Speech Codes reports are available at thefire.org/spotlight/reports.
[8] Colorado Mesa University, Fayetteville State University, Florida State University, Jackson State University, and the University of Colorado Boulder all joined the ranks of green light schools since last year’s report. Emory University, which went from an overall green light rating to an overall red light rating last year by password-protecting certain policies, resolved this issue over the past year, restoring its green light status.
[9] Press Release, Found. for Individual Rights in Educ., One million students now attend colleges with FIRE’s highest free speech rating (Feb. 26, 2019), thefire.org/one-million-students-now-attend-colleges-with-fires-highest-free-speech-rating.
[10] See Appendix B for a full list of rating changes over the 2019–20 academic year.
[11] The remaining 0.5% of public institutions in the database earn FIRE’s Warning rating. The Warning rating is typically reserved for private universities that clearly prioritize other values above students’ free speech, such that students do not have a reasonable expectation of free speech rights. However, despite their public status as federal service academies, the United States Military Academy and the United States Naval Academy earn the Warning rating because they place other institutional priorities above free speech.
[12] Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” See generally Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CAL. L. REV. (2016) (discussing evolution of Title IX requirements).
[13] McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010); DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995); Univ. of Cincinnati Chapter of Young Am. for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Jun. 12, 2012); Smith v. Tarrant Cty. Coll. Dist., 694 F. Supp. 2d 610 (N.D. Tex. 2010); Coll. Republicans at S.F. St. Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003); Booher v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998); Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.); UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis., 774 F. Supp. 1163 (E.D. Wisc. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). In addition, numerous institutions have voluntarily modified their speech codes as part of settlement agreements. See, e.g., Press Release, Found. for Individual Rights in Educ., VICTORY: Speech rights of 150,000 students to be restored as Los Angeles Community College District settles lawsuit, will abandon Pierce College’s tiny free speech zone (Dec. 13, 2018), thefire.org/victory-speech-rights-of-150000-students-to-be-restored-as-los-angeles-community-college-district-settles-lawsuit-will-abandon-pierce-colleges-tiny-free-speech-zone [hereinafter Pierce College Press Release]; Press Release, Found. for Individual Rights in Educ., VICTORY: Student detained for passing out political flyers settles lawsuit with Illinois College (Apr. 18, 2018), thefire.org/victory-student-detained-for-passing-out-political-flyers-settles-lawsuit-with-illinois-college; Press Release, Found. for Individual Rights in Educ., Victory: Texas College Settles Free Speech Lawsuit After Telling Student that Gun Rights Sign Needs ‘Special Permission’ (May 4, 2016), thefire.org/victory-texas-college-settles-free-speech-lawsuit-after-telling-student-that-gun-rights-sign-needs-special-permission; Press Release, Found. for Individual Rights in Educ., Victory: Lawsuit Settlement Restores Free Speech Rights at Dixie State U. After Censorship of Bush, Obama, Che Flyers (Sept. 17, 2015), thefire.org/victory-lawsuit-settlement-restores-free-speech-rights-at-dixie-state-u-after-censorship-of-bush-obama-che-flyers.
[14] California maintains a law that applies the protections of the First Amendment to private, nonsectarian institutions of higher education in the state. Section 94367 of the California Education Code—the so-called “Leonard Law”—provides: “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” The code further provides that the law “does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization.” Cal. Educ. Code § 94367(a).
[15] B.1.b. Non-Discrimination Investigations & Resolutions Procedure, MIDDLEBURY HANDBOOK, http://www.middlebury.edu/about/handbook/policies-for-all/non-discrim-policies/anti-harassment-discrimin (last visited Oct. 23, 2020).
[16] Statement on Freedom of Expression, PRINCETON UNIV. RIGHTS, RULES, RESPONSIBILITIES 2020, rrr.princeton.edu/university#comp113 (last visited Oct. 15, 2020).
[17] Middlebury College and Princeton University both earn overall red light ratings. See School Spotlight: Middlebury College, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., thefire.org/schools/middlebury-college (last visited Oct. 16, 2020); School Spotlight: Princeton University, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., thefire.org/schools/princeton-university (last visited Oct. 16, 2020).
[18] Committee on Freedom of Expression at the University of Chicago, Report of the Committee on Freedom of Expression, available at provost.uchicago.edu/FOECommitteeReport.pdf. For a complete list of institutions that have adopted a version of the Chicago Statement, see thefire.org/chicago-statement-university-and-faculty-body-support.
[19] Press Release, Found. for Individual Rights in Educ., Colorado Mesa University earns nation’s top free speech rating for colleges (Sept. 30, 2020), thefire.org/colorado-mesa-university-earns-nations-top-free-speech-rating-for-colleges.
[20] Virginia v. Black, 538 U.S. 343, 359 (2003).
[21] Id. at 360.
[22] Behavioral Health, and/or Safety of Self/Others, STUDENT HOUSING & RESIDENTIAL LIFE COMMUNITY STANDARDS AND CONDUCT PROCESS OVERVIEW, d2jtc9c99zuy7w.cloudfront.net/TJ9un1suS72Vzs2Ws5uw_SHRL%20Community%20Standards%204.12.19.pdf (last visited Oct. 17, 2020).
[23] Threatening Behaviors, SOUTHERN ILLINOIS UNIV. CARBONDALE STUDENT CONDUCT CODE at 66 (updated Aug. 14, 2020), srr.siu.edu/_common/Student_Conduct_Code.pdf.
[24] Threatening Conduct, CODE OF STUDENT CONDUCT at 21 (updated Sept. 18, 2020), inside.sou.edu/assets/policies/Code_of_Student_Conduct_091820.pdf.
[25] Austin Tong Sanction Letter, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (July 17, 2020), thefire.org/austin-tong-sanction-letter-july-14-2020.
[26] See Letter from Lindsie Rank, Program Officer, Individual Rights Defense Program, Found. For Individual Rights in Educ., to Father Joseph M. McShane, S.J., President, Fordham Univ. (July 17, 2020), d28htnjz2elwuj.cloudfront.net/wp-content/uploads/2020/07/17105352/FIRE-letter-to-Fordham-University-July-17-2020.pdf.
[27] Adam Goldstein, Analysis: Department of Education investigates Fordham over broken speech promises in Austin Tong case, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (Aug. 25, 2020), thefire.org/analysis-department-of-education-investigates-fordham-over-broken-speech-promises-in-austin-tong-case.
[28] See, e.g., Mission Statement, FORDHAM UNIV. (Apr. 28, 2005), fordham.edu/info/20057/about/2997/mission_statement (“Fordham strives for excellence in research and teaching, and guarantees the freedom of inquiry required by rigorous thinking and the quest for truth.”); Demonstration Policy, FORDHAM UNIV. STUDENT HANDBOOK, fordham.edu/info/21684/university_regulations/3709/demonstration_policy (last visited Oct. 29, 2020) (“Each member of the University has a right to freely express their positions and to work for their acceptance whether they assent to or dissent from existing situations in the University or society.”); Bias-Related Incidents and/or Hate Crimes, FORDHAM UNIV. STUDENT HANDBOOK, fordham.edu/info/21684/university_regulations/6566/bias-related_incidents_andor_hate_crimes (last visited Oct. 29, 2020) (“[T]he University values freedom of expression and the open exchange of ideas. The expression of controversial ideas and differing views is a vital part of University discourse.”).
[29] Goldstein, supra note 27.
[30] Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134–35 (1992).
[31] 395 U.S. 444 (1969).
[32] Id. at 447 (emphasis in original).
[33] 414 U.S. 105 (1973).
[34] Id. at 108–09.
[35] Campus Climate, UNIV. OF CALIFORNIA, ucsystems.ethicspointvp.com/custom/ucs_ccc/default.asp (last visited Oct. 17, 2020).
[36] Decorating Your Room, RESIDENCE HALL STUDENT HANDBOOK at 18, wiu.edu/student_services/housing/living_on_campus/pdf/ResidenceHallHandbook2020.pdf (last visited Oct. 17, 2020).
[37] Misconduct against Persons, CODE OF STUDENT CONDUCT, indstate.edu/code-of-student-conduct/prohibited-conduct/against-persons (last visited Oct. 17, 2020).
[38] Miller v. California, 413 U.S. 15, 24 (1973).
[39] 403 U.S. 15 (1971).
[40] 410 U.S. 667 (1973).
[41] Id. at 670.
[42] Code of Conduct Offenses and Sanctions, ALA. A&M UNIV. STUDENT HANDBOOK (revised 2019), https://www.aamu.edu/about/administrative-offices/student-affairs/student-handbook/index.html.
[43] Code of Student Conduct, UNIV. OF LOUISIANA AT LAFAYETTE at 16 (last updated August 18, 2020), studentrights.louisiana.edu/sites/studentrights/files/Code%20of%20Student%20Conduct%20Sept.20.pdf.
[44] Residence Life Office Residence Hall Posting Guidelines, FROSTBURG ST. UNIV. frostburg.edu/student-life/residence-life/residence-life-office/rlo-posting-policy.pdf (last visited Oct. 13, 2020).
[45] Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999).
[46] See Letter from Shaheena Simons and Damon Martinez, U.S. Dep’t of Justice to Robert G. Frank, President, Univ. of N.M. (Apr. 22, 2016), available at justice.gov/opa/file/843901/download; Letter from Anurima Bhargava, Chief, Civil Rights Div., U.S. Dep’t of Justice, and Gary Jackson, Reg’l Dir., Office for Civil Rights, U.S. Dep’t of Educ., to Royce Engstrom, President, Univ. of Mont. and Lucy France, Univ. Counsel, Univ. of Mont. (May 9, 2013), available at justice.gov/opa/documents/um-ltr-findings.pdf.
[47] Policy on Discrimination & Harassment, NORTHWESTERN UNIV. (Sept. 1, 2019), northwestern.edu/equity/documents/discrimination-harassment-policy-resources-procedures-final.pdf.
[48] Prohibited Discrimination & Harassment Policy, PORTLAND ST. UNIV. (Sept. 28 2017), docs.google.com/document/d/e/2PACX-1vRBvO64ghsJ4GeuDWaEvzmv9r95jMzJDuIEP9Jqx3LwdRjcb9DVWRVYtC3QA6W8Jenhp-txbfpxCRWg/pub.
[49] Sexual Misconduct Policy, FURMAN UNIV. at 4 (Aug. 14, 2020), furman.edu/title-ix/wp-content/uploads/sites/128/2020/08/Furman-2020-21-Sexual-Misconduct-Policy-8.14.20.pdf.
[50] See, e.g., DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008) (holding that Temple University’s sexual harassment policy was unconstitutionally overbroad); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989) (holding that University of Michigan’s discriminatory harassment policy was unconstitutionally broad); Booher v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998) (holding that Northern Kentucky University’s sexual harassment policy was unconstitutionally broad). The United States Court of Appeals for the Fifth Circuit recently questioned whether purely speech harassment claims could ever meet the Davis standard, stating: “Whether Davis may constitutionally support purely verbal harassment claims, much less speech-related proscriptions outside Title IX protected categories has not been decided by the Supreme Court or this court and seems self-evidently dubious.” Speech First, Inc. v. Fenves, No. 19-50529, n. 16 at 29* (5th Cir. 2020).
[51] “Dear Colleague” Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. (Oct. 26, 2010), available at ed.gov/about/offices/list/ocr/letters/colleague-201010.html.
[52] “In the place of parents.”
[53] See generally McCauley v. Univ. of the V.I., 618 F.3d 243–44 (3d Cir. 2010) (“[T]he pedagogical missions of public universities and public elementary and high schools are undeniably different. While both seek to impart knowledge, the former encourages inquiry and challenging priori assumptions whereas the latter prioritizes the inculcation of societal values. . . . The idea that public universities exercise strict control over students via an in loco parentis relationship has decayed to the point of irrelevance.”).
[54] Student Code, WESTERN MICHIGAN UNIV. at 15 (last updated Sept. 2020), wmich.edu/sites/default/files/attachments/u492/2020/Student%20Code%20October%202020.pdf.
[55] Id.
[56] Howard University Student Handbook, HOWARD UNIV., studentaffairs.howard.edu/sites/studentaffairs.howard.edu/files/2020-07/howard-university-student-handbook-2019-2020-REM.pdf (last visited Oct. 13, 2020).
[57] Id.
[58] Code of Student Conduct, TOWSON UNIV. at 4 (Aug. 12, 2020), towson.edu/studentaffairs/policies/documents/code_of_student_conduct.pdf.
[59] See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If 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”); see also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001) (holding that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive. . . . ”); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003) (“[R]egulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings”); Doe v. Univ. of Mich., 721 F. Supp. 852, 863 (E.D. Mich. 1989) (“Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people”).
[60] Use of University Technological and Information Resources, BOSTON COLLEGE POLICIES AND PROCEDURES at 4 (last updated Mar. 30, 2004), bc.edu/content/dam/files/offices/policies/pdf/policies/I/1-100-025.pdf.
[61] Statement of Shared Values, BOISE ST. UNIV. OFFICE OF THE PRESIDENT, boisestate.edu/president/values/statement-of-shared-values (last visited Oct. 16, 2020).
[62] Code of Student Conduct, GEORGETOWN UNIV. DIVISION OF STUDENT AFFAIRS at 13 (last updated fall 2018), studentconduct.georgetown.edu/code-of-student-conduct.
[63] See, e.g., Coll. Republicans at S.F. St. Univ. v. Reed, 523 F. Supp. 2d 1005, at 23* (N.D. Cal. 2007) (enjoining enforcement of university civility policy because “there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.”).
[64] Email Policy, DREXEL UNIV. INFORMATION TECHNOLOGY (last revised July 1, 2014), drexel.edu/it/about/policies/policies/07-Email.
[65] Academic User Agreement, INFORMATION TECHNOLOGY SERVICES (last updated Apr. 13, 2020), apps.carleton.edu/campus/its/policies/agreement.
[66] Id.
[67] Use of Information Technology Services, COLLEGE OF THE HOLY CROSS POLICIES AND PROCEDURES MANUAL (Dec. 16, 2015), holycross.edu/sites/default/files/files/policyprocedure/its/350000-002_use_of_information_technology_services_2015_accepted.pdf.
[68] Memory-holed: Universities and Internet Speech, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., thefire.org/ research/publications/miscellaneous-publications/memory-holed-universities-and-internet-speech.
[69] See Letter from Zachary Greenberg, Program Officer, Individual Rights Defense Program, Found. For Individual Rights in Educ., to Harvey Kesselman, President, Stockton Univ. (Aug. 7, 2020), thefire.org/fire-letter-to-stockton-university-august-7-2020.
[70] Id.
[71] See generally Bias Response Team Report 2017, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., thefire.org/research/publications/bias-response-team-report-2017.
[72] Campus Life Policies, GRINNELL COLLEGE 2019-2020 STUDENT HANDBOOK, catalog.grinnell.edu/content.php?catoid=12&navoid=2536#Hate_Crimes_and_Bias-Motivated_Incidents_Policy (last visited Oct. 16, 2020).
[73] Bias Incidents & Hate Crimes, BATES OFFICE OF EQUITY AND INCLUSION, bates.edu/equity-inclusion/bias-incidents-hate-crimes (last visited Oct. 16, 2020).
[74] What is a Bias Incident?, DEPAUW UNIV. BIAS INCIDENT RESOURCES, depauw.edu/studentacademiclife/campus-safety/bias-incident-resources/investigation-follow-up (last visited Oct. 16, 2020).
[75] Speech First, Inc. v. Schlissel, 939 F.3d 756 (6th Cir. 2019). Quoting Schlissel, the United States Court of Appeals for the Fifth Circuit recently found a university bias reporting team’s practice of making referrals to university disciplinary bodies “sufficiently proscriptive to objectively chill student speech.” Speech First, Inc. v. Fenves, No. 19-50529, at 22* (5th Cir. 2020).
[76] Speech First v. U of M; Settlement Agreement, SPEECH FIRST – UNIV. OF MICHIGAN CASE (Oct. 28, 2019), speechfirst.org/court-battles/speech-first-v-u-of-m-settlement-agreement.
[77] Campus Climate Support, UNIV. OF MICHIGAN DEAN OF STUDENTS, deanofstudents.umich.edu/campus-climate-support (last visited Oct. 29, 2020).
[78] See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).
[79] Forsyth, 505 U.S. 123.
[80] Id. at 134.
[81] Id. at 134–35 (emphasis added).
[82] Event Security and Safety, EVERGREEN ST. COLLEGE POLICIES AND PROCEDURES, evergreen.edu/policy/eventsecurityandsafety (last visited Oct. 13, 2020).
[83] Id.
[84] Free Speech and Demonstration Policy, BRIDGEWATER ST. UNIV. (reviewed Sept. 2017), handbook.bridgew.edu/sites/handbook/files/2019-08/BSU_Free_Speech_and_Demonstration_Policy_Revised_2017.pdf.
[85] Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).
[86] Disorderly Conduct, VIRGINIA ST. UNIV. STUDENT HANDBOOK at 88, vsu.edu/files/docs/student-activities/student-handbook.pdf (last visited Oct. 16, 2020).
[87] Rules for Maintenance of Public Order, RENSSELAER HANDBOOK OF STUDENT RIGHTS AND RESPONSIBILITIES at 88 (last rev. Aug. 21, 2020), rpi.app.box.com/s/3f1cl3w1lt1mq8gqla68v6uk3vh1c19f.
[88] Distribution of Literature Policy, KEAN UNIV. POLICIES, kean.edu/offices/policies/distribution-literature-policy (last visited Oct. 16, 2020).
[89] See Appendix D for a full list of schools with free speech zone policies.
[90] Infographic: Free Speech Zones on America’s Campuses (2013), thefire.org/infographic-free-speech-zones-on-americas-campuses-2.
[91] For more information about FIRE’s Stand Up for Speech Litigation Project and Million Voices campaign, see standupforspeech.com.
[92] Pierce College Press Release, supra note 13.
[93] #138.1 – Posting and Distribution of Materials, EASTERN ILLINOIS UNIV. INTERNAL GOVERNING POLICIES (July 27, 2020), castle.eiu.edu/~auditing/138_1.php.
[94] Id.
[95] Speech and Advocacy, UNIV. OF CALIFORNIA RIVERSIDE (Sept. 15, 1992), fboapps.ucr.edu/policies/index.php?path=printPolicies.php&policy=700-70.
[96] Id.
[97] Freedom of Expression, VANDERBILT UNIV. STUDENT HANDBOOK, vanderbilt.edu/student_handbook/student-engagement/#freedom-of-expression (last visited Oct. 13, 2020).
[98] Model Code, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (May 28, 2020), thefire.org/legal/procedural-advocacy/model-code. For other resources regarding policy reform, see thefire.org/resources/fires-speech-code-resources.
[99] See, e.g., Marieke Tuthill Beck-Coon, FIRE lawsuit against Iowa State University administrators ends with nearly $1 million in damages and fees, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC. (Mar. 23, 2018) thefire.org/fire-lawsuit-against-iowa-state-university-administrators-ends-with-nearly-1-million-in-damages-and-fees. See also Azhar Majeed, Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights, 8 CARDOZO PUB. L., POL’Y & ETHICS J. 3, 515 (2010).
[100] FIRE’s Spotlight Database Search Results, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., thefire.org/resources/spotlight/?x=&speech_code=Red&y=&institution_type=&speech_code_advanced=Red&y_advanced=&statement%5B%5D=804#search-results (last visited Oct. 29, 2020).
[101] 526 U.S. 629, 633 (1999).
[102] U.S. Dep’t of Educ., Dear Colleague Letter from Gerald A. Reynolds, Assistant Sec’y for Civil Rights (July 28, 2003), https://www2.ed.gov/about/offices/list/ocr/firstamend.html.
[103] Id.
[104] Letter from Catherine E. Lhamon, Assistant Secretary for Civil Rights, U.S. Department of Education, to Greg Lukianoff, President, Foundation for Individual Rights in Education (Nov. 14, 2013), available at thefire.org/letter-from-department-of-education-office-for-civil-rights-assistant-secretary-catherine-e-lhamon-to-fire.
[105] Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance, 85 Fed. Reg. 30,026 (May 19, 2020) (to be codified at 34 C.F.R. pt. 106).
[106] Sexual Harassment Policy, MURRAY ST. UNIV. (last updated May 1, 2017), murraystate.edu/headermenu/administration/OfficeOfInstitutionalDiversityEquityandAccess/pdf/sexualharassmentpolicy.pdf.
[107] See Title IX, OFFICE OF INSTITUTIONAL DIVERSITY, EQUITY AND ACCESS, murraystate.edu/headermenu/administration/titleix/index.aspx (last visited Oct. 20, 2020).
[108] The regulations note that “inappropriate or illegal behavior may be addressed by a recipient even if the conduct clearly does not meet the Davis standard or otherwise constitute sexual harassment under § 106.30, either under a recipient’s own code of conduct or under criminal laws in a recipient’s jurisdiction (e.g., with respect to a commenter’s example of drugging at a dorm party).” Nondiscrimination, supra note 105. However, developing two entirely separate definitions of sexual harassment with correspondingly distinct procedural protections gives administrators the power to decide which definition and procedures to apply to each case (and even to conduct concurrent proceedings), a scenario that invites administrative abuse and puts free speech and due process rights at risk. As a federal district court recently explained: “Such disregard for the inevitable administrative headaches of a multi-procedure approach certainly qualifies as evidence of an irregular adjudicative process.” Doe v. Rensselaer Polytechnic Institute, No. 1:20-cv-1185, at 13* (N.D.N.Y. Oct. 16, 2020). The court found that a school’s “conscious and voluntary choice to afford a plaintiff, over his objection, a lesser standard of due process protections when that school has in place a process which affords greater protections, qualifies as an adverse action.” Id.
[109] Title IX Grievance Policy, SUNY FREDONIA at 5, fredonia.edu/sites/default/files/section/about/diversity-inclusion/SUNY%20Fredonia%20Title%20IX%20Policy.pdf (last visited Oct. 20, 2020).
[110] Sexual Harassment Policy, UNIV. POLICIES FOR STUDENTS, fredonia.edu/student-life/student-conduct/policies#SexualDiscrimination (last visited Oct. 20, 2020).
[111] Archive: BOG Policy 44 – Policy Regarding Discrimination, Harassment, Sexual Harassment, Sexual & Domestic Misconduct, Stalking, and Retaliation, WEST VIRGINIA UNIV. RULES, POLICIES, AND PROCEDURES (repealed Aug. 14, 2020), policies.wvu.edu/archives/bog-policy-44-policy-regarding-discrimination-harassment-sexual-harassment-sexual-domestic-misconduct-stalking-and-retaliation.
[112] BOG Governance Rule 1.6 – Rule Regarding Discrimination, Harassment, Sexual Harassment, Sexual Misconduct, Domestic Misconduct, Stalking, Retaliation, and Relationships, WEST VIRGINIA UNIV. RULES, POLICIES, AND PROCEDURES (Aug. 14, 2020), policies.wvu.edu/finalized-bog-rules/bog-governance-rule-1-6-rule.
[113] Sexual Harassment, Discrimination and Retaliation for Employees, Students and Visitors, WSU POLICIES AND PROCEDURES (last revised Aug. 13, 2020), wichita.edu/about/policy/ch_03/ch3_06.php.
[114] Student Code of Conduct Handbook, WSU POLICIES AND PROCEDURES (last revised June 24, 2020), wichita.edu/about/student_conduct/student-code-of-conduct-handbook.php.