Archive | Freedom of Speech at Colleges and Universities

CWRU President and Provost Reject Academic Boycott of Israel

In a statement e-mailed to faculty and other members of the university community, Case Western Reserve University President Barbara Snyder and Provost Bud Baeslack forcefully rejected calls for an academic boycott of Israel.  As they note, academic boycotts of this sort run contrary to principles of academic freedom and “seek to subvert one of higher education’s core values in service of other ends.”  I’ve reproduced their entire statement below the fold. [...]

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Student Dismissed Partly Because His Expressed “Views … Were Deemed Not in Alignment” with Government Standards

Here’s yet another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This brief is in a Ninth Circuit university student dismissal case, and it’s filed on behalf of the Foundation for Individual Rights and the Student Press Law Center, in Oyama v. University Hawaii (the link is to the decision that is being appealed). My students Charlie Linehan, Jun Shimizu, and Michael Smith worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here. You can also read FIRE’s post and SPLC’s post on the case.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

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SUMMARY OF ARGUMENT

The University of Hawaii dismissed Oyama from its teaching credential program, in part because “the views [he had] expressed regarding students with disabilities and the appropriateness of sexual relations with minors were deemed not in alignment with standards set by the Hawaii Department of Education” and other entities. Oyama v. Univ. of Hawaii [...]

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Campus Videorecording and Bans on “Harassment” and “Intimidation”

As the previous post noted, I’m passing along another brief that the UCLA First Amendment Amicus Brief Clinic has filed in the last few weeks. This one is on behalf of the Student Press Law Center and the Foundation for Individual Rights in Education, in O’Brien v. Welty (9th Cir.) (the link is to the decision that is being appealed). My students Curtis Brown, Sara Liss, and Ali Vaqar worked on the brief. I quote the brief below, for those who want to read it on the blog, though you can also find a PDF here.

Please note that, in all Clinic cases, the students and I act as advocates for the clients. We are making the best arguments we can for the position we are taking; we are not necessarily endorsing it as the position that we think the law ought to take. (Sometimes you can tell from past posts of mine that I do personally agree with that position, but you should not draw such an inference simply from the filing of the brief.) I should also note that the amicus briefs are designed to be read alongside the parties’ briefs, so they naturally omit much of the factual and procedural background that the parties’ briefs make clear; my apologies if, as a result, some of the material is therefore opaque to other readers.

Summary of Argument

Videorecording is presumptively protected by the First Amendment. To be sure, videorecording, like other protected First Amendment activity, may be subject to more restriction in nonpublic fora and limited public fora than in traditional public fora. If a university implements a policy clearly prohibiting videorecording professors in their offices without their consent, such a policy might be constitutional.

But the 5 Cal. Code Regs. § 41301(b)(7) ban on “interfer[ing]

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No Leafleting at a University Without Several Days’ Notice

The Foundation for Individual Rights in Education reports:

University of Alabama police have ordered a pro-choice student group to cease distributing informational flyers on campus in response to another group’s pro-life event, and threatened members with arrest for failing to comply with its orders….

As The Crimson White, UA’s student newspaper, reported on April 17, 2013, the student group Bama Students for Life hosted a “Genocide Awareness Project” (GAP) protest on UA’s quad on April 10 and 11. GAP protests are frequently hosted on college campuses and feature graphic, abortion-related images. Members of the Alabama Alliance for Sexual and Reproductive Justice (AASRJ) student group learned of the planned event on April 9 and decided to distribute flyers to counter GAP’s anti-abortion message.

The pro-choice students of AASRJ distributed flyers on the quad, in the vicinity of the protest, for roughly one hour on April 10 without incident. The Crimson White reports, however, that a woman complained to UA police about the content of one of the group’s flyers. UA police then ordered AARSJ to end its counter-protest and threatened to arrest two AASRJ members. One member reported, “We were then warned … [w]ithout a grounds permit, any member distributing fliers as part of AARSJ would be arrested.”

AASRJ submitted a grounds use permit request to UA in order to continue its counter-protest activities on April 11 but was informed by a UA official that the permit would not be approved in time. UA’s grounds use policy states that permits may be approved in “as few as 3 days,” but otherwise instructs that “applicants for use of other campus grounds should request permission for such use 10 working days prior to the event.”

This policy means that student groups aren’t allowed to speak on campus — whether by leafleting or in [...]

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The Administration Says Universities Must Implement Broad Speech Codes

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

  1. saying “unwelcome” “sexual or dirty jokes”
  2. spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
  3. engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
  4. engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, pictures, or written materials”
  5. making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary. [...]

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Speaking Engagements This Week

On Monday I’ll be speaking before the ACS chapter at Yale Law School on the topic, “What Has Lawrence Meant? Litigation and LGBT Rights on the Tenth Anniversary of Lawrence v. Texas.”  The presentation will be in Rm. 129 from 1-2 p.m.

On Tuesday I’ll be speaking at Minnesota State University-Mankato on “The Role of the First Amendment at a Public University,” a talk occasioned by a recent controversy at the school over the presence of a Chick-Fil-A on campus.  I’ll be giving the talk twice. once from 3:30-4:30 p.m. and a second time from 7:30 to 9:00 p.m.  Both will be in Morris Hall, Rm. 101. [...]

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“Jury Finds Former College President Personally Liable for $50,000 in Victory for Student Rights”

So reports FIRE (the Foundation for Individual Rights in Education), though note that it’s pretty likely that the former president would nonetheless end up being indemnified by his former employer or the employer’s insurance carrier:

A federal jury today found former Valdosta State University (VSU) President Ronald M. Zaccari personally liable for $50,000 for violating the due process rights of former student Hayden Barnes in the case of Barnes v. Zaccari. In May 2007, Zaccari expelled Barnes for peacefully protesting Zaccari’s plan to construct two parking garages on campus, calling a collage posted by Barnes on his personal Facebook page a “threatening document” and labeling Barnes a “clear and present danger” to VSU….

Barnes’ ordeal began in the spring of 2007, when he protested Zaccari’s plan to construct two new parking garages on campus at a cost of $30 million. By posting flyers and sending emails to Zaccari, student and faculty governing bodies, and the Board of Regents of the University System of Georgia, Barnes expressed his concerns and proposed what he saw as environmentally friendly alternatives. Barnes also penned a letter to the editor of the VSU student newspaper about the proposed parking garage plans and wrote to Zaccari to ask for an exemption from the mandatory student fee designated for funding the construction.

In response to Barnes’ activism, Zaccari personally ordered that he be “administratively withdrawn” from VSU in May of 2007, ignoring the concerns raised by members of his administration. Zaccari absurdly claimed that Barnes presented a “clear and present danger” to both Zaccari and the VSU campus on the basis of a cut-and-paste collage Barnes had posted on his Facebook page that included pictures of Zaccari, a parking deck, and the caption “S.A.V.E.—Zaccari Memorial Parking Garage.” …

In September of 2010, the U.S. District Court

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Are Liberal or Conservative Americans More Likely to Support Restrictions on Racist and Anti-Religious Speech?

Here’s data from the General Social Survey, limiting the years to 2000, 2002, 2004, 2006, 2008, and 2010 (with nearly 8000 total responses for each question), with respondents self-identifying as liberals, moderates, and conservatives. (I have flattened out the gradations within each category — extremely liberal/conservative, plain liberal/conservative, slightly liberal/conservative — partly because otherwise some of the cell sizes become small enough that the margin of error gets quite large.)

“There are always some people whose ideas are considered bad or dangerous by other people. For instance, somebody who is against churches and religion… a. If such a person wanted to make a speech in your (city/town/community) against churches and religion, should he be allowed to speak, or not?”

  • Liberals — 83-17% yes.
  • Moderates — 76-24% yes.
  • Conservatives — 75-25% yes.

“Or consider a person who believes that Blacks are genetically inferior. a. If such a person wanted to make a speech in your community claiming that Blacks are inferior, should he be allowed to speak, or not?”

  • Liberals — 67-33% yes.
  • Moderates — 58-42% yes.
  • Conservatives — 62-38% yes.

So looking at the public at large, liberals support protection both for racist speech and anti-religious speech more than conservatives do, though the gulf is not wide. Similarly, when the question is whether “such a person [should] be allowed to teach in a college or university,” liberals are likewise somewhat more likely to say yes, both as to the anti-religious person (72-38% liberal, 60-40% moderate, 57-43% conservative) and the person who believes blacks are genetically inferior (53-47% liberal, 47-53% moderate, 47-53% conservative). [...]

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U.S. Commission on Civil Rights Testimony on the First Amendment and Anti-Muslim/Anti-Islam Speech

I was invited to testify on this subject at today’s U.S. Commission on Civil Rights briefing on Federal Civil Rights Engagement with the Arab and Muslim American Communities Post 9/11, so I thought I’d pass along my written remarks. You can read them in PDF form here, or in plain text below (though without the footnotes). My sense from the questions was that at least some commissioners (and not only the conservative ones) found the subject matter of the remarks interesting.

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October 29, 2012

U.S. Commission on Civil Rights
624 9th St., NW
Washington, DC 20425

Dear Members of the Commission:

I entirely agree that the religious freedom rights and free speech rights of Muslim Americans, as well as all other Americans, should be protected. I have publicly spoken out, for instance, in favor of applying religious accommodation law to Muslim employees as well as to others. I have condemned attempts to criticize Muslim office-holders for taking their oath of office on a Koran. I have spoken in favor of extending mosques the same property rights extended to other property owners, and against attempts to exclude mosques from particular areas. And I agree that the government should take steps to make Muslim Americans, like Americans of all religions, feel welcome in America.

At the same time, attempts to make adherents of minority religions feel welcome should not end up suppressing the free speech rights of others who seek to criticize those religions. Islam, like other belief systems — Catholicism, Scientology, libertarianism, feminism, or what have you — merits evaluation and, at times, criticism. And under the First Amendment, even intemperate and wrong-headed criticism is fully constitutionally protected. Yet unfortunately attempts at suppression of criticism of Islam have been distressingly frequent.

Universities: Thus, for instance, San [...]

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Final Thoughts: Changing the Culture on Campus

This week I survived Hurricane Sandy, a massive tree covering the entire front of my house, an intermittent Internet connection, and even guest-blogging for The Volokh Conspiracy. For my last post, I wanted to end on a positive note. First, I wanted to let you all know that I am having a book event for Unlearning Liberty at the Los Angeles Press Club on November 29. Tickets are free, but please register to attend and tell your friends to do so too. It should be a good time.

I also wanted to share some of the ways the Foundation for Individual Rights in Education (FIRE, where I am president) is working to positively “change the culture” on today’s college campuses to one that better understands the importance of freedom of speech, freedom of conscience, freedom of association, due process, etc. After all, the problems I describe in Unlearning Liberty run deep.

In order to provide a much-needed basic introduction to the core concepts of free expression — something fewer and fewer high schools seem to be doing — FIRE authored a five-book series of Guides to Student Rights on Campus. We just updated our flagship Guide to Free Speech on Campus and released the new edition (available free for download) this summer. The books earned praise from Nadine Strossen, Alan Dershowitz, and Ed Meese. I hope you’ll read them and pass them along to students you might know who could use them.

But to truly “change the culture” we must stop rights abuses from happening in the first place by preparing and educating students for the challenges they will face. FIRE is trying to do this through several programs: our Campus Freedom Network of more than 5,500 students, professors, and alumni; our “Freedom in Academia” High [...]

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‘The New York Times’, Yale, and Sissygate

Last week, I had the pleasure of having my first op-ed published in The New York Times, and I was pleased (and a little surprised) when the letters to the editor that were published the next day were overwhelmingly positive.

The op-ed changed a lot during the editing process, evolving from what started as a piece primarily about restrictions on election-related student speech. (For more on that front, see several cases my colleague Will Creeley talked about in greater detail in a recent piece for The Huffington Post.) Switching gears, the editors in particular wanted me to add some discussion of elite colleges.

Thankfully, that wasn’t very hard — my new book, Unlearning Liberty: Censorship and the End of American Debate, has an entire chapter just devoted to censorship at Harvard and Yale. So I chose one fairly recent, very silly case from Yale, which I had previously written about for The Huffington Post.

As you may or may not know, Yale and Harvard have a football rivalry. Every year students and alumni get very excited about what they call “The Game.” And every year, Yale and Harvard students figure out new ways to insult each other. In 2009, Yale freshmen took a highbrow approach, plastering a line from F. Scott Fitzgerald’s 1920 novel This Side of Paradise on that year’s annual “Game” T-shirt: “I think of all Harvard men as sissies,” the T-shirt read. The Yalies added “WE AGREE” underneath.

Just for context’s sake, the full quote reads:

“I want to go to Princeton,” said Amory. “I don’t know why, but I think of all Harvard men as sissies, like I used to be, and all Yale men as wearing big blue sweaters and smoking pipes.”

But for Yale, this was a literary reference [...]

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Private Religious Colleges and Free Speech

I have been guest blogging this week, and Eugene asked me to reserve some of my posts to respond to reader comments. From the moment that Eugene announced I would be posting, a few commenters have decided that the single most important thing FIRE should actually be fighting is the scourge of censorship-happy Christian colleges. I confess, as I have before, to just being really tired of this argument, as we’ve explained FIRE’s stance on private colleges so many times. (Check out the following link, and most recently my piece in RealClearReligion.)

It’s really pretty simple, and people familiar with law and legal principles should be able to understand our stance. Public colleges and universities are, of course, legally bound by the First Amendment. Private colleges are not. However, private institutions should be held accountable for how they present themselves and for the contractual promises they make to students. The vast majority of private colleges promise free speech in rather glowing language found in student handbooks, codes of conduct, and similar materials. But out of the top few hundred colleges and universities in the country, a small minority do not. FIRE has concluded that it makes little sense in our pluralistic democracy to go after private colleges that have policies making it clear that the institution places other values (for example, their religious or ideological identity) above the value of freedom of speech.

Pepperdine University is an example of a school with a very powerful statement that should serve as a warning to students that its religious identity takes priority. Pepperdine policy states, for instance, that “[i]t is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” The [...]

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Only a Few Examples of Censorship on Campus?

A few commenters on my latest post for The Volokh Conspiracy have been riffing on the theme that the Foundation for Individual Rights in Education (FIRE, where I work) is only able to show a few examples of censorship on campus, and therefore it must not be that big of a problem.

Here’s my erudite response: hogwash.

First of all, it takes a very rare brave and/or motivated student to even bother fighting back against his or her college or university administration. Nonetheless, FIRE, which is not exactly a household name, receives about 450 requests for help every year from students or faculty members who believe their free speech or due process rights have been violated. Because of our size, we don’t actually have the capacity to handle all of the case submissions we receive. Some cases we refer to attorneys, while other cases are settled in private. The cases that we talk about publicly are only those about which we have been given permission to speak. But even with all these limitations, here’s a short list of just some of the cases we have fought over the past few years:

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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 [...]

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