Commentary: Universities Violate First Amendment Rights of Students, Faculty

Today the Foundation for Individual Rights in Education (FIRE) released its 2009 report on campus speech codes, arguing that American colleges and universities systematically violate students' and faculty members' right to freedom of expression.
Spotlight on Speech Codes 2009: The State of Free Speech on Our Nation's Campuses reports on policies at 364 American colleges and universities. FIRE found that approximately 74 percent of schools surveyed maintain policies that clearly restrict speech that, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution.

"Unfortunately, this year's report demonstrates that -- despite decades of precedent declaring speech codes unlawful and two decisions this year alone -- the majority of colleges and universities brazenly maintain policies that violate students' and faculty members' fundamental rights," FIRE President Greg Lukianoff said. "Everyone who values the free exchange of ideas should be deeply disturbed by these findings."

FIRE's report is the most comprehensive effort to date both to quantify the proportion of colleges and universities that restrict free speech and to assess the severity of those restrictions. The report surveyed publicly available policies at institutions ranked in the 100 "Best National Universities" and at the 50 "Best Liberal Arts Colleges," as rated in the August 27, 2007, " America's Best Colleges" issue of U.S. News & World Report, as well as at 207 major public universities. The research was conducted between September 2007 and September 2008.

All of the policies cited in the report are available online in FIRE's searchable speech code database, Spotlight: The Campus Freedom Resource.

The report notes only marginal improvement among such findings as these:

• The percentage of institutions maintaining clearly unconstitutional speech codes declined slightly. While the percentage of institutions with unconstitutional speech codes -- 74.2 percent -- is disturbingly high, it is a slight improvement over last year, when the figure was 75 percent.
• Public colleges and universities are disproportionately restricting free speech. Public universities, as governmental entities, are legally bound to respect First Amendment rights. Yet 77 percent of them explicitly prohibit protected speech, as compared to 67 percent of private universities.
• "Bias incident reporting" is a growing trend whereby schools encourage students to report one another's "biases" to campus authorities. At the University of Virginia and the University of Missouri, students may report on one another anonymously.

Other highlights of FIRE's research from 2007 and 2008 include:

• The University of the Pacific defines harassment as "conduct (intentional or unintentional) that has the effect of demeaning, ridiculing, defaming, stigmatizing, intimidating, slandering or impeding the work or movement of a person or persons or conduct that supports or parodies the oppression of others."
• Penn State University requires its students to agree that "I will not engage in any behaviors that compromise or demean the dignity of individuals or groups," including any "taunting," "ridiculing," or "insulting."
• Texas Southern University prohibits causing "emotional, mental, physical or verbal harm to another person" by means including "embarrassing, degrading or damaging information, assumptions, implications, [or] remarks."

Spotlight on Speech Codes 2009: The State of Free Speech on Our Nation's Campuses also chronicles the rise of speech codes in the 1980s and 1990s and discusses various ways that universities curtail free speech on campus, including election-year restrictions on political expression and the institution of unduly restrictive policies on harassment, tolerance, respect, civility, and disorderly conduct.

FIRE's report suggests several potential solutions to the problem of speech codes. Many of the speech codes at public universities would likely not survive legal challenge. FIRE's Speech Code Litigation Project has already led to the demise of similar codes at Citrus College, San Francisco State University, Shippensburg

University of Pennsylvania, the State University of New York at Brockport, and Texas Tech University. In August, the U.S. Court of Appeals for the Third Circuit held that a Temple University harassment policy was unconstitutional -- a ruling that is binding on public universities in Delaware, New Jersey and Pennsylvania.

"This year, the percentage of universities maintaining unconstitutional speech codes has decreased for the first time, and that is very encouraging news," said Samantha Harris, FIRE's Director of Speech Code Research. "But there is still a lot of work to be done. Many universities have changed their policies in response to public exposure, and you can count on FIRE to keep the pressure on in the years to come."

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists and public intellectuals from across the political and ideological spectrum on behalf of individual rights, due process, freedom of expression, academic freedom, and rights of conscience at our nation's colleges and universities.