The Reality of College Censorship, Part 2: Speech Codes

While the public seems to fondly believe that speech codes are a thing of the past — a bygone product of the “political correctness” movement of the 1980s and 1990s — they are alive and well on the modern college campus. As I explain in Unlearning Liberty, these days, you’re unlikely to open up a student handbook and find a section labeled “Speech Code.” Instead, these codes are woven into other policies regarding student conduct, particularly those that prohibit “harassment” and “incivility.” What hasn’t changed about these speech codes, however, is how ludicrous they often are.

In the Foundation for Individual Rights in Education‘s (FIRE’s) most recent annual report on campus speech codes, we found that nearly two-thirds (65 percent) of the 392 colleges and universities we surveyed across the country maintained speech codes that clearly fail to meet First Amendment standards (which FIRE labels as “red light” policies). See Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation’s Campuses for our analysis. Moreover, even though public schools are legally required to uphold students’ First Amendment rights, these institutions were no more likely than private schools to have policies that met constitutional standards; 65 percent of both public and private universities surveyed received a “red light” rating.

This is actually an improvement from past years. In fact, the percentage of overall “red light” schools has now dropped for four straight years, from 75 percent in 2009, to 71 percent in 2010, to 67 percent in 2011, to 65 percent today. Additionally, the number of institutions that do not maintain any published policy restrictions on student free speech (which we call “green light” schools) has nearly doubled over that time, from 8 to 15. Nonetheless, the fact that such a high proportion of surveyed colleges and universities continue to maintain clearly unconstitutional policies on student expression, and that so few of them have rid their campuses of speech codes, is cause for disappointment.

In fact, there are so many laughable speech codes out there that FIRE has been able to highlight an outrageous “Speech Code of the Month” every month since 2005 — with no risk of running out of suitable material. Some early examples of clearly unconstitutional policies include our February 2006 Speech Code of the Month at Jacksonville State University, which stated that “No student shall threaten, offend, or degrade anyone on university owned or operated property.” Our September 2007 Speech Code of the Month, courtesy of Ohio State University, simply mandated, “Do not joke about differences related to race, ethnicity, sexual orientation, gender, ability, socioeconomic background, etc.” Drexel University’s Speech Code of the Month (September 2006) used an even wider brush; it broadly banned “inconsiderate jokes” and “inappropriately directed laughter.”(It’s useful to note that Drexel is a private university in Philadelphia that, like the vast majority of private colleges and universities, promises students freedom of speech in its official policies. While private universities are not bound by the First Amendment, when a private institution clearly commits itself to free speech on campus and holds itself out as a bastion of free inquiry, FIRE holds that school to the same standards governing freedom of expression that govern a public university. This also reflects the “contract theory” of individual rights that has been recognized by many courts reviewing college promises to students. For more on our stance regarding private colleges and universities, please see this piece I wrote for RealClearReligion last month.)

The trend of sometimes sad, sometimes hilarious speech codes continues to this day. The University of Delaware received the Speech Code of the Month “honors” in August 2012 for maintaining a “bullying” policy that banned “teasing,” “ridiculing,” and the “spreading of rumors.” Illinois State University, our September 2012 honoree, has a Code of Student Conduct that sets forth a list of “non-negotiable values,” including “civility,” “an appreciation of diversity,” and “individual and social responsibility,” and states that “when individual behavior conflicts with the values of the University, the individual must choose whether to adapt his or her behavior to meet the needs of the community or leave the University.” That’s right — the alternative to abiding by this code is to leave the university. This month’s policy, which we awarded to SUNY New Paltz, prohibits distributing or even discussing any “written or graphic material that ridicules, denigrates, insults, [or] belittles” any individual or group that has “protected status.” Of course, it’s up to the administration to decide what counts as ridiculing or belittling.

These and many similar policies have persisted despite the fact that they have been consistently defeated in court decision after court decision, a half dozen of which included challenges to policies that FIRE had already publicly declared to be unconstitutional. The list of cases, which now spans over two decades, includes: McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating university policies banning speech that causes “mental harm,” “offensive” or “unauthorized” signs, and conduct that causes “emotional distress”); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (striking down a university sexual harassment policy on First Amendment grounds); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring a university discriminatory harassment policy facially unconstitutional); University of Cincinnati Chapter of Young Americans for Liberty v. Williams, No. 1:12-cv-155 (S.D. Ohio Aug. 22, 2012) (invalidating a university’s free speech zone policy on First Amendment grounds); Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex. 2010) (invalidating a university’s “cosponsorship” policy due to overbreadth); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of a university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding a university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of a university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding a university sexual harassment policy void for vagueness and overbreadth); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.) (declaring a “harassment by personal vilification” policy unconstitutional); The UWM Post, Incorporated v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring a university’s racial and discriminatory harassment policy facially unconstitutional); and Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of a university’s discriminatory harassment policy due to unconstitutionality).

FIRE’s goal, unusual as it might seem, is to put ourselves out of business, so to speak. We’d love to wake up one morning and find that colleges and universities are the open forums for speech that they so often promise to be. I’d love to make Unlearning Liberty an obsolete tale of past censorship. Sadly, we continue to be amazed and frustrated that so many universities insist on maintaining unconstitutional speech codes despite clear legal precedent against such policies. I’d be interested to hear why the Conspiracy community thinks this happens. What techniques would you suggest to change this trend on campus? I know you guys aren’t short on opinions.

, , , , , , ,