Coming close on the heels of yesterday’s announcement of the elimination of Dartmouth’s speech code, FIRE’s success continues today with a victory over the speech code at SUNY Brockport. The suit against SUNY Brockport was brought in cooperation with the hardworking volunteer attorneys of FIRE’s Legal Network as part of FIRE’s Speech Codes Litigation Project, which aims to overturn public college or university speech codes in every federal circuit. So far, FIRE has met with an astounding level of success, with a perfect record of four lawsuits filed and four victories for free speech.
The success of this project is confirming what FIRE has long said to be true—that universities cannot defend in public, or in court, what they do in private. Too often, universities ignore the requirements of the law in formulating policies that regulate all areas of students’ lives, and there are few regulations more intrusive than those that purport to determine what a student can say or even think. While we are lucky enough to have brilliant lawyers like Robert Goodman working on cases like this, it wouldn’t take a brilliant lawyer to review these speech regulations for constitutionality; in fact, a law student who had recently taken a First Amendment law class might well have caught just about everything we have challenged in these schools’ speech regulations. Even a high school student in a civics class might have raised an eyebrow at a sexual harassment code like SUNY Brockport’s that called “cartoons that depict religious figures in compromising situations” or “calling someone an ‘old bag’” examples of sexual harassment.
Why, then, do public colleges and universities persist in promulgating speech codes that are patently unconstitutional? Conservatives often like to recount the reaction of Pauline Kael, a New Yorker film critic, to the landslide reelection of President Nixon in 1972. Kael is supposed to have said something along the lines of, “How can that be? No one I know voted for him.” It’s almost trite these days to quote Kael’s purported remark, but it does serve to illustrate that if you spend all of your time around like-minded people, eventually those people’s beliefs begin to seem like the only sensible thing to believe. I suspect that something similar is at work in many university administrations. It becomes an article of faith that nothing good can come of “calling someone an old bag” or of religious-figure bashing cartoons, so why not ban them? After all, these forms of expression are only likely to make people angry, and that cannot be good for either campus order or alumni donations. Considerations of what this means for our fundamental freedoms, or whether such a ban might be unconstitutional, do not enter into this mental calculus. I suspect that this is the main force driving the adoption and enforcement of speech restrictions today.
Yet politics and a concern for personal or official power are also huge factors, and I believe this is the reason that some universities (SUNY Brockport not being one of them) attempt to fight for regulations that are manifestly and obviously unconstitutional (ahem—UNC—ahem). The adoption of the “PC” culture by many on the left means that speech restrictions are often welcomed and defended rather than viewed with suspicion as an authoritarian impingement on personal liberty. This belief in political correctness then provides an intellectual cover story for attempts to maintain or increase school officials’ personal power over students. Long before Pauline Kael made her Nixon observation, Lord Acton famously said that “power corrupts,” and college officials wield a great deal of it over the lives of their students. Say you’re a student who’s 2000 miles from home and your parents are paying $35,000 a year so that you can go to college: how much of a risk are you going to take, when you know that those who break the rules often get sent home without any of their tuition money? Add to that the risk of being branded a “sexual harasser” (try explaining that to potential employers!) and you can see what kind of risks students can be facing if they anger a school official whose career prospects are very much tied up in not embarrassing the university for which they work.
FIRE’s Speech Codes Litigation Project is a response to these realities. FIRE is shifting some of the risk back onto the people who deserve it—the people who maintain unlawful and unconstitutional speech codes on public campuses. Not only do these lawsuits vindicate the rights of students on the campus that’s being sued, but they put college administrators on notice. So, to all of you public college administrators out there who have forgotten about the U.S. Constitution (and you know who you are, if you just think about it): beware! Because FIRE is actively looking for more schools who have ignored students’ rights—and the next lawsuit might be against you.