Spotlight on Speech Codes 2013
THE STATE OF FREE SPEECH ON OUR NATION’S CAMPUSES
THE FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION
Table of Contents
EXECUTIVE SUMMARY 02
METHODOLOGY 03
FINDINGS 05
DISCUSSION 07
WHAT CAN BE DONE? 21
SPOTLIGHT ON: CENSORSHIP OF POLITICAL EXPRESSION 22
APPENDIX A A-1
APPENDIX B B-1
APPENDIX C C-1
APPENDIX D D-1 Executive Summary
The U.S. Supreme Court has called America’s colleges and universities “vital centers for the Nation’s intellectual life,” but the reality today is that many of these institutions severely restrict free speech and open debate. Speech codes—policies prohibiting student and faculty speech that would, outside the bounds of cam- pus, be protected by the First Amendment— have repeatedly been struck down by federal and state courts. Yet they persist, even in the very jurisdictions where they have been ruled unconstitutional; the majority of American colleges and universities have speech codes. above: FIRE President Greg Lukianoff FIRE surveyed 409 schools for this report and found that over 62 percent maintain severely on harassment and bullying. A number of restrictive, “red-light” speech codes—policies universities have adopted more restrictive that clearly and substantially prohibit protected harassment policies threatening protected speech. That this figure is so large is deeply speech in response to the April 4, 2011, “Dear troubling, but there is good news: for the Colleague” letter issued by the federal Depart- fifth year in a row, the percentage of schools ment of Education’s Office for Civil Rights maintaining such policies has declined. (OCR), the agency responsible for enforcement of federal anti-discrimination laws on campus. In another encouraging trend, several more That letter backed away from OCR’s previously schools eliminated all of their restrictive speech robust support for students’ expressive rights, codes this year, thereby earning FIRE’s highest, and a number of universities have followed suit. “green-light” rating. Moreover, a number of schools have adopted The extent of colleges’ restrictions on free unconstitutionally overbroad and/or vague anti- speech varies by state. In Illinois and Wisconsin, bullying policies within the past year, under 100 percent of the schools surveyed received a pressure from federal and state governments to red light. In contrast, some of the best states address the issue of bullying on campus. for free speech in higher education were Mis- sissippi and Virginia, where 33.3 percent and Thus, despite the trend towards fewer speech 37.5 percent of schools surveyed, respectively, codes on campus over the past several years, received a green light. there is ongoing reason for concern about new waves of campus censorship potentially Unfortunately, progress continues to be threat- facilitated by federal agencies and federal and ened by new federal and state regulations state legislators.
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Methodology
FIRE surveyed publicly available policies broadly applicable to important categories at 305 four-year public institutions as well of campus expression. For example, a ban as at 104 of the nation’s largest and/or on “offensive speech” would be a clear most prestigious private institutions. Our violation (in that it is unambiguous) as well research focuses in particular on public as a substantial violation (in that it covers universities because, as explained in detail a great deal of what would be protected below, public universities are legally bound expression in the larger society). Such a to protect students’ right to free speech. policy would give a university a red light.
FIRE rates colleges and universities as “red When a university restricts access to its light,” “yellow light,” or “green light” based speech-related policies by requiring a on how much, if any, protected speech their login and password, it denies prospective written policies restrict. FIRE defines these students and their parents the ability to terms as follows: weigh this crucial information before mak- ing a decision. At FIRE, we consider such RED LIGHT: A red-light institution is one action to be deceptive and serious enough that has at least one policy that both that it alone warrants a red-light rating. In clearly and substantially restricts freedom this year’s report, three institutions receive of speech, or that bars public access to a red-light rating for maintaining password its speech-related policies by requiring a protection on speech-related policies.1 university login and password for access. A “clear” restriction is one that unambigu- YELLOW LIGHT: A yellow-light institution ously infringes on protected expression. maintains policies that could be interpreted In other words, the threat to free speech to suppress protected speech or policies that, at a red-light institution is obvious on the while clearly restricting freedom of speech, face of the policy and does not depend on affect only narrow categories of speech. how the policy is applied. A “substantial” restriction on free speech is one that is 1 These are Connecticut College, Edinboro University of Penn- sylvania, and Texas Tech University.
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that the school’s written policies do not pose a serious threat to free speech.
NOT RATED: When a private university2 expresses its own standards by stating clearly and consistently that it holds a certain set of values above a commitment to free- dom of speech, FIRE does not rate that university.3 Nine surveyed schools are listed as “not rated” in this report.4
2 The “Not Rated” list also contains two public institutions, the U.S. Military Academy and the U.S. Naval Academy, both of which are among the nation’s top universities as named in U.S. News & World Report’s college rankings. Although these are public institutions, First Amendment protections do not apply in the military context as they do in civilian society. Rather, the U.S. Supreme Court has held: The military need not encourage debate or tolerate protest to the above: Peter Bonilla, Associate Director of FIRE’s Individual Rights extent that such tolerance is required of the civilian state by the Defense Program First Amendment; to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps. The essence of military service “is the subordination of the For example, a policy banning “verbal desires and interests of the individual to the needs of the service.” Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (internal abuse” has broad applicability and poses citations omitted). These institutions clearly and consistently a substantial threat to free speech, but it do not promise their students full freedom of speech—the West Point Catalog, for example, explicitly states that “[m]ilitary life is not a clear violation because “abuse” is fundamentally different from civilian life” and requires might refer to unprotected speech, such as “numerous restrictions on personal behavior”—and, like private universities, are not legally obligated to do so. threats of violence or genuine harassment. 3 For example, Vassar College makes it clear that students Similarly, while a policy banning “posters are not guaranteed robust free speech rights. Vassar’s policy on “Academic Freedom and Responsibility” explicitly states: referencing alcohol or drugs” clearly restricts As a private institution, Vassar is a voluntary association of per- speech, it is limited in scope. Yellow-light sons invited to membership on the understanding that they will respect the principles by which it is governed. Because Vassar policies are typically unconstitutional, and is a residential college, and because it seeks diversity in its a rating of yellow rather than red in no way membership, individuals have a particular obligation beyond that of society at large to exercise self-restraint, tolerance for means that FIRE condones a university’s difference, and regard for the rights and sensitivities of others. restrictions on speech. Rather, it means The policy further provides: [M]embers of the college community accept constraints, that in FIRE’s judgment, those restrictions similar to those of parliamentary debate against personal do not clearly and substantially restrict attacks or courts of law against the use of inflammatory language. Under the rule of civility, individuals within the speech in the manner necessary to warrant community are expected to behave reasonably, use speech a red light. responsibly, and respect the rights of others. “Academic Freedom and Responsibility,” Vassar College Student Handbook, available at http://deanofthecollege.vassar. GREEN LIGHT: If FIRE finds that a uni- edu/documents/student-handbook/VassarStudentHandbook. pdf?1213 (last visited Oct. 15, 2012). It would be clear to any versity’s policies do not seriously threaten reasonable person reading this policy that students are not campus expression, that college or university entitled to unfettered free speech at Vassar. receives a green light. A green light does not 4 FIRE has not rated the following schools: Baylor Univer- sity, Brigham Young University, Pepperdine University, Saint necessarily indicate that a school actively Louis University, the U.S. Military Academy, the U.S. Naval supports free expression; it simply means Academy, Vassar College, Worcester Polytechnic Institute, and Yeshiva University.
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62.1% RED LIGHT 32% 3.7% 2.2%
FIGURE 1: ALL SCHOOLS BY RATING
75% 74% RED 71% LIGHT Findings 67% 65% 61.6%
Of the 409 schools reviewed by FIRE, 33.8% 27% 29% 24% 254 received a red-light rating (62.1%), 131 21% 21% YELLOW received a yellow-light rating (32%), and 15 LIGHT received a green-light rating (3.7%). FIRE 3% 3% 4% 3.9% 5 GREEN 2% 2% did not rate 9 schools (2.2%). (See Figure 1.) LIGHT 2006 2007 2008 2009 2010 2011 2012
For the fifth year in a row, this represents FIGURE 2: PUBLIC SCHOOLS BY RATING a decline in the percentage of schools maintaining red-light speech codes, down from 75% five years ago.6 Additionally, the number of green-light institutions has risen 61.6% from just 8 schools five years ago (2%) to RED LIGHT fifteen schools this year (3.6%). 33.8% 3.9% 0.7% The percentage of public schools with a red- light rating also fell for a fifth consecutive year. Five years ago, 79% of public schools FIGURE 3: SPEECH CODES AT PUBLIC COLLEGES AND UNIVERSITIES received a red-light rating. This year, 61.6% of public schools did—a dramatic change. (See Figure 2.)
FIRE rated 305 public colleges and univer- 63.4% sities. Of these, 61.6% received a red-light RED LIGHT 27% rating, 33.8% received a yellow-light rating, 2.9% 6.7% 5 See Appendix A for a full list of schools by rating. 6 The 2012 figure stood at 65%; in 2008, 2009, 2010, and 2011, it was 75%, 74%, 71%, and 67%, respectively. For a full list of rating changes since last year’s report, see Appendix B. FIGURE 4: SPEECH CODES AT PRIVATE COLLEGES AND UNIVERSITIES
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and 3.9% received a green-light rating.7 light. Mississippi had the next highest Two schools, both of them military institu- percentage of green-light schools (33.3%), tions (0.7%), were not rated. (See Figure 3.) since its two major public universities— Mississippi State University and the Since public colleges and universities are University of Mississippi—eliminated all legally bound to protect their students’ of their speech codes this year and earned First Amendment rights, any percentage green-light ratings. Other states that fared above zero is unacceptable, so much work comparatively well in our survey were remains to be done. This ongoing positive Maryland (40% red light), North Carolina trend, however, is encouraging. With con- (42.5%), Indiana (43.8%), and California tinued efforts by free speech advocates (45%). on and off campus, this number hopefully will continue to drop. The U.S. Court of Appeals for the Third Circuit, whose jurisdiction includes the The percentage of private universities states of Delaware, New Jersey, and earning a red-light rating declined, as Pennsylvania, has the strongest record in well, from 65% last year to 63.4% this year. the nation of striking down university and While private universities are not legally even secondary-school speech codes on bound by the First Amendment, most constitutional grounds.9 One would expect, make extensive promises of free speech to therefore, to see very few speech codes their students and faculty. Speech codes in the public institutions of those states, impermissibly violate those promises. but that is not the case. Delaware, for example, has two four-year public uni- Of the 104 private colleges and universities versities—Delaware State University and reviewed, 63.4% received a red-light rating, the University of Delaware—both of which 27% received a yellow-light rating, 2.9% receive red-light ratings. In New Jersey, received a green-light rating, and 6.7% were 42.8% of the public schools FIRE surveyed not rated. (See Figure 4.) received a red light. In Pennsylvania, 44.4% of public institutions surveyed received The data showed a wide variation in red-light ratings. Given the Third Circuit’s restrictions on speech among the states.8 unequivocal and robust support of students’ In Illinois and Wisconsin, 100% of the free speech rights, the fact that these num- schools FIRE surveyed received a red light. bers do not even come close to zero reflects Texas and Louisiana also fared poorly, with the extent to which speech codes are deeply 87.5% of the schools surveyed in each state entrenched in the institutional culture of receiving a red light. By contrast, only 25% American colleges and universities. of the schools surveyed in Virginia received a red light, and 37.5% received a green
7 Joining the ranks of green-light schools this year were Mississippi State University and the University of Mississippi. Unfortunately, one former green-light school, the University of South Dakota, dropped to a yellow-light rating, bringing the 9 McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d green-light total to fifteen. Cir. 2010); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 8 State-by-state data are given in Appendix C for the 28 states in 2008); Saxe v. State College Area School District, 240 F.3d 200 (3d which FIRE has collected information on five or more universities. Cir. 2001).
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Discussion
SPEECH CODES ON CAMPUS: jority of institutions—including some of BACKGROUND AND LEGAL CHALLENGES those that have been successfully sued— Speech codes—university regulations still maintain unconstitutional speech prohibiting expression that would be codes.11 It is with this in mind that we constitutionally protected in society turn to a more detailed discussion of the at large—gained popularity with college ways in which campus speech codes violate administrators in the 1980s and 1990s. individual rights and what can be done to As discriminatory barriers to education challenge them. declined, female and minority enrollment increased. Concerned that these changes PUBLIC UNIVERSITIES VS. would cause tension and that students who PRIVATE UNIVERSITIES finally had full educational access would The First Amendment prohibits the gov- arrive at institutions only to be hurt and ernment—including governmental entities offended by other students, college admin- such as state universities—from interfering istrators enacted speech codes. with the freedom of speech. A good rule of thumb is that if a state law would In doing so, however, administrators ig- be declared unconstitutional for violating nored or did not fully consider the legal the First Amendment, a similar regulation ramifications of placing such restrictions at a state college or university is likewise on speech, particularly at public universities. unconstitutional. As a result, federal courts have overturned speech codes at numerous colleges and The guarantees of the First Amendment universities over the past two decades. 2004); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003); Booher v. Northern Kentucky University Despite the overwhelming weight of legal Board of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS authority against speech codes,10 the ma- 11404 (E.D. Ky. July 21, 1998); Corry v. Leland Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.); UWM Post, Inc. v. Board of Regents of the University 10 McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d of Wisconsin, 774 F. Supp. 1163 (E.D. Wisc. 1991); Doe v. Cir. 2010); DeJohn v. Temple University, 537 F.3d 301 (3d Cir. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). 2008); Dambrot v. Central Michigan University, 55 F.3d 1177 (6th In addition, several institutions have voluntarily rescinded their Cir. 1995); University of Cincinnati Chapter of Young Americans speech codes as part of settlement agreements. for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio 11 Several universities that have been the targets of successful Jun. 12, 2012); Smith v. Tarrant County College District, 694 speech code lawsuits—such as the University of Michigan and F. Supp. 2d 610 (N.D. Tex. 2010); College Republicans at San the University of Wisconsin—have revised the unconstitutional Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. policies challenged in court but still maintain other, equally un- Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. constitutional policies.
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THE FIRST AMENDMENT PROHIBITS THE GOVERNMENT—INCLUDING GOVERNMENTAL ENTITIES SUCH AS STATE UNIVERSITIES— FROM INTERFERING WITH THE FREEDOM OF SPEECH.
generally do not apply to students at private students, faculty and administrators, enjoy colleges because the First Amendment the right to freedom of speech and expres- regulates only government—not private— sion. This freedom includes the right to conduct.12 Moreover, although acceptance express points of view on the widest of federal funding does confer some range of public and private concerns and obligations upon private colleges (such as to engage in the robust expression of compliance with federal anti-discrimination ideas.”13 Similarly, Smith College’s “State- laws), compliance with the First Amend- ment of Academic Freedom and Freedom ment is not one of them. of Expression” states that “[f]reedom of speech and expression is the right both of This does not mean, however, that students members of the Smith College community and faculty at private schools are not entitled and of invited guests.”14 Yet both of these to free expression. In fact, most private schools prohibit a great deal of speech that universities explicitly promise freedom of the First Amendment would protect at speech and academic freedom, presumably a public university. to lure the most talented students and faculty, since most people would not want At private universities like Georgetown to study or teach where they could not and Smith, it is this false advertising— speak and write freely. promising free speech and then, by policy and practice, prohibiting free speech—that Georgetown University’s “Speech and FIRE considers impermissible. Students Expression Policy,” for example, asserts: may freely choose to enroll at a private “[A]ll members of the Georgetown Univer- institution where they knowingly give sity academic community, which comprises up some of their free speech rights in exchange for membership in the university 12 Although the First Amendment does not regulate private community. But universities may not engage universities, this does not mean that all private universities are legally free to restrict their students’ free speech rights. For in a bait-and-switch where they advertise example, California’s “Leonard Law,” Cal. Educ. Code § 94367, themselves as bastions of freedom and prohibits secular private colleges and universities in California from restricting speech that would otherwise be constitutionally instead deliver censorship and repression. protected. The Leonard Law provides, in relevant part: No private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary 13 “Speech and Expression Policy,” Office of Student Affairs, sanctions solely on the basis of conduct that is speech or other available at http://studentaffairs.georgetown.edu/policies.html communication that, when engaged in outside the campus (last visited Oct. 17, 2012). or facility of a private postsecondary institution, is protected 14 “Statement of Academic Freedom and Freedom of from governmental restriction by the First Amendment to the Expression,” Smith College Student Handbook, available at http:// United States Constitution or Section 2 of Article 1 of the www.smith.edu/sao/handbook/policies/freeexpression.php California Constitution. (last visited Oct. 17, 2012).
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WHAT EXACTLY IS “FREE SPEECH,” AND individual or group of individuals.” Virginia HOW DO UNIVERSITIES CURTAIL IT? v. Black, 538 U.S. 343, 359 (2003). The What does FIRE mean when we say that Court also has defined “intimidation,” a university restricts “free speech”? Do in the constitutionally proscribable sense, people have the right to say absolutely as a “type of true threat, where a speaker anything, or are only certain types of directs a threat to a person or group of speech “free”? persons with the intent of placing the victim in fear of bodily harm or death.” Simply put, the overwhelming majority of Id. at 360. Neither term would encompass, speech is protected by the First Amend- for example, a vaguely worded statement ment. Over the years, the Supreme Court that is not directed at anyone in particular. has carved out some narrow exceptions: speech that incites reasonable people to Nevertheless, particularly following the immediate violence; so-called “fighting tragic 2007 shootings at Virginia Tech, words” (face-to-face confrontations that universities have misapplied policies prohib- lead to physical altercations); harassment; iting threats and intimidation to infringe true threats and intimidation; obscenity; on protected speech. and defamation. If the speech in question does not fall within one of these exceptions, In September 2011, for example, a professor it most likely is protected speech. at the University of Wisconsin–Stout was threatened with criminal charges and The exceptions are often misused and reported to the university’s “threat assess- abused by universities to punish con- ment team” for two satirical postings hung stitutionally protected speech. In some on his office door. The first posting was a instances, a policy may be constitutional printout of a picture of the actor Nathan as written—for example, a prohibition on Fillion from the television series Firefly. “incitement”—but not in its application. The posting included a well-known line In other instances, a written policy will from an episode of the show: “You don’t purport to be a legitimate ban on know me, son, so let me explain this to something like harassment or threats, but you once: If I ever kill you, you’ll be awake. will, either deliberately or through poor You’ll be facing me. And you’ll be armed.” drafting, encompass protected speech, In response to the university’s actions, as well. Therefore, it is important to the professor posted a new flyer reading understand what these narrow exceptions “Warning: Fascism,” with a mocking line to free speech actually mean in order to at the bottom about the violence that recognize when they are being misapplied. fascists might perpetrate: “Fascism can cause blunt head trauma and/or violent Threats & Intimidation death. Keep fascism away from children The Supreme Court has defined “true and pets.” The poster also included a threats” as only “those statements where cartoon image of a police officer striking the speaker means to communicate a a civilian. University police removed that serious expression of an intent to commit poster on the grounds that it “depicts an act of unlawful violence to a particular violence and mentions violence and death,”
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Tech massacre and the Lone Star College flyer was that they both involved guns (in the flyer’s case, actually, only the mention of guns).
Earlier that year, Colorado College found two students guilty of violating the college’s policy on “violence” because of a satirical flyer—mocking a publication of the college’s Feminist and Gender Studies Program— that administrators deemed “implicitly threatening.” The original flyer of the Feminist and Gender Studies Program was entitled “The Monthly Rag”17 and above: FIRE Senior Vice President Robert Shibley contained various blurbs, including a definition of the word “packing” (“cre- and summoned the professor to a meeting ating the appearance of a phallus under about the posters because of concerns clothing”) and a reference to “male raised by the university’s threat assessment castration.” The parody flyer, entitled “The team.15 The university eventually reversed Monthly Bag,”18 contained blurbs that its decision to censor the posters, but only dealt with exaggerated male machismo after FIRE launched a public campaign that instead of feminism. One comment, for generated national outrage over the case. example, concerned “chainsaw etiquette”: “when possible, show off your guns [a well- In the fall of 2008, officials at Lone Star known slang term for bicep muscles] while College in Texas prohibited a student group sawing shit.” In finding the students guilty from distributing a satirical “Top Ten Gun of violating the university’s policy on vio- Safety Tips” flyer as part of the school’s lence, Dean of Students Mike Edmonds “club rush,” an event where student wrote, “I recognize that your intent in groups attempt to recruit new members. posting your publication was not to When FIRE wrote to the college about this threaten but to parody. However, in the impermissible censorship, the school’s climate in which we find ourselves today, general counsel responded that “the tragedy violence—or implied violence—of any kind of Virginia Tech cannot be underestimated cannot be tolerated on a college campus.”19 when it comes to speech relating to fire- arms—however ‘satirical and humorous’ Incitement the speech may be perceived by some.”16 In FIRE’s experience, universities also The only connection between the Virginia have a propensity to restrict speech that
15 Letter from Adam Kissel, Vice President of Programs, FIRE, to Charles W. Sorensen, Chancellor, University of Wisconsin- 17 “The Monthly Rag,” available at http://thefire.org/index.php/ Stout, Sep. 21, 2011, available at http://thefire.org/article/13590. article/9086.html. html. 18 “The Monthly Bag,” available at http://thefire.org/index.php/ 16 E-mail from Lone Star College System General Counsel article/9085.html. Brian Nelson to Adam Kissel, Oct. 14, 2008, available at http:// 19 Letter from Colorado College Vice President Mike Edmonds www.thefire.org/article/9815.html. to Chris Robinson, March 25, 2008.
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deeply offends other students on the basis who agree with it to commit immediate that it constitutes “incitement.” The basic violence. In other words, the danger is that concept, as administrators see it, is that certain speech will convince listeners who offensive or provocative speech will anger agree with it to take immediate unlawful those who disagree with it, perhaps so action. The paradigmatic example of incite- much that it moves them to violence. A ment is a person standing on the steps of good recent example of this mindset comes a courthouse in front of a torch-wielding from University of Pennsylvania professor mob and urging that mob to burn down Anthea Butler, who called for the impris- the courthouse immediately. To apply the onment of the producer of the Innocence of doctrine to an opposing party’s reaction Muslims film that at the time was believed to speech is to convert the doctrine into to have sparked violent protests in the an impermissible “heckler’s veto,” where Middle East in the fall of 2012. After those violence threatened by those angry about protests, Butler tweeted “How soon is the speech is used as a reason to censor [Innocence of Muslims filmmaker] Sam Bacile that speech. As the Supreme Court has going to be in jail folks? I need him to go said, speech cannot be prohibited because now. When Americans die because you are it “might offend a hostile mob” or be stupid....”20 In a subsequent article in USA “unpopular with bottle throwers.”22 Today, Butler reiterated that her call for Bacile’s imprisonment was not because The precise standard for incitement to he had denigrated Islam, but because he violence is found in the Supreme Court’s had “indirectly and inadvertently inflamed decision in Brandenburg v. Ohio, 395 U.S. people half a world away, resulting in the 444 (1969). There, the Court held that the deaths of U.S. Embassy personnel.”21 state may not “forbid or proscribe advocacy (While we now know that the attack on the of the use of force or of law violation except U.S. Embassy in Libya was not related to where such advocacy is directed to inciting the film, the flaws in Butler’s statement— or producing imminent lawless action and made when that was still the prevailing is likely to incite or produce such action.” theory—remain entirely relevant.) While 395 U.S. at 447 (emphasis in original). preventing violence is an admirable goal, This is an exacting standard, as evidenced this is an inexcusable misapplication of by its application in subsequent cases. the incitement doctrine. For instance, the Supreme Court held Incitement, in the legal sense, does not in Hess v. Indiana, 414 U.S. 105 (1973), refer to speech that may lead to violence on that a man who had loudly stated, “We’ll the part of those opposed to or angered by take the fucking street later” during an it, but rather to speech that will lead those anti-war demonstration did not intend to incite or produce immediate lawless 20 “UPenn professor Anthea Butler calls for imprisonment action (the Court found that “at worst, it of filmmaker Sam Bacile,” Sep. 12, 2012, http://twitchy. com/2012/09/12/upenn-professor-calls-for-imprisonment-of- amounted to nothing more than advocacy filmmaker-sam-bacile/ (last visited Oct. 22, 2012). of illegal action at some indefinite future 21 Anthea Butler, “Opposing View: Why Sam Bacile Deserves time”), and was therefore not guilty under Arrest,” USA Today, Sep. 13, 2012, available at http://usatoday30. usatoday.com/news/opinion/story/2012-09-12/Sam-Bacile- Anthea-Butler/57769732/1 (last visited Nov. 20, 2012). 22 Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992).
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a state disorderly conduct statute. 414 U.S. speech. The Court wrote that “the mere at 108–09. The fact that the Court ruled dissemination of ideas—no matter how in favor of the speaker despite the use offensive to good taste—on a state of such strong and unequivocal language university campus may not be shut off underscores the narrow construction that in the name alone of ‘conventions of has traditionally been given to the incite- decency.’” Id. at 670. Nonetheless, many ment doctrine and its requirements of colleges erroneously believe that they may likelihood and immediacy. Nonetheless, legitimately prohibit profanity and other college administrations have been all too types of vulgar expression. willing to ignore or abuse this jurisprudence. For example, Alcorn State University’s Obscenity Student Handbook forbids the “use of The Supreme Court has held that obscene profanity.”23 Similarly, California State expression, to fall outside of the protec- University–Channel Islands prohibits tion of the First Amendment, must “depict “the use of rude, vulgar, indecent, or or describe sexual conduct” and must be obscene verbal, non-verbal, and/or writ- “limited to works which, taken as a whole, ten expressions” in or around any of its appeal to the prurient interest in sex, residence halls.24 which portray sexual conduct in a patently offensive way, and which, taken as a Harassment whole, do not have serious literary, artistic, Actual harassment is not protected by political, or scientific value.”Miller v. the First Amendment. In the educational California, 413 U.S. 15 (1973). context, the Supreme Court has defined student-on-student harassment as targeted This is a narrow definition applicable only discriminatory conduct “so severe, per- to some highly graphic sexual material. vasive, and objectively offensive that it It does not encompass curse words, even effectively bars the victim’s access to though these are often colloquially referred an educational opportunity or benefit.” to as “obscenities.” In fact, the Supreme Davis v. Monroe County Board of Educa- Court has explicitly held that profanity tion, 526 U.S. 629 (1999). This is conduct is constitutionally protected. In Cohen v. far beyond the dirty joke or “offensive” California, 403 U.S. 15 (1971), the defen- student newspaper op-ed that is too dant, Cohen, was convicted in California often deemed “harassment” on today’s for wearing a jacket bearing the words college campus. Harassment is extreme “Fuck the Draft” in a courthouse. The and usually repetitive behavior—behavior Court overturned Cohen’s conviction, so serious that it would interfere with a holding that the message on his jacket, reasonable person’s ability to receive his or however vulgar, was protected speech. In her education. Papish v. Board of Curators of the Univer- 23 “Codes of Conduct,” Alcorn State University Student sity of Missouri, 410 U.S. 667 (1973), the Handbook, available at http://www.alcorn.edu/WorkArea/Down- Supreme Court determined that a student loadAsset.aspx?id=10612 (last visited Oct. 22, 2012). newspaper article entitled “Motherfucker 24 “Profanity, Obscenity, and Lewd Behavior,” California State University–Channel Islands Resident Handbook, available at Acquitted” was constitutionally protected http://www.csuci.edu/housing/abcmanual12-13.pdf (last visited Oct. 22, 2012).
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Universities are legally obligated to main- tain policies and practices aimed at preventing this type of genuine harass- ment from happening on their campuses. Unfortunately, they often misuse this obligation by punishing protected speech that is unequivocally not harassment. The misuse of harassment regulations became so widespread that in 2003, the federal Department of Education’s Office for Civil Rights (OCR)—the agency responsible for the enforcement of federal harassment regulations in schools—issued a letter of clarification to all American colleges and universities.25 Gerald Reynolds, the Assistant Secretary of Education at the time, wrote: above: FIRE’s 2012 Summer Interns Visit Independence Hall
Some colleges and universities have interpreted OCR’s prohibition of “ha- “Dear Colleague” letter to universities rassment” as encompassing all offensive seems to back away from the agency’s speech regarding sex, disability, race previously robust support for students’ or other classifications. Harassment, free speech rights.26 however, to be prohibited by the statutes within OCR’s jurisdiction, must include The 2011 letter discusses extensively the something beyond the mere expression legal obligations borne by colleges and of views, words, symbols or thoughts universities under Title IX to respond that some person finds offensive. to both sexual harassment and sexual violence committed against students. Reynolds wrote that “OCR’s regulations However, it fails to mention the free are not intended to restrict the exercise expression concerns raised in the 2003 of any expressive activities protected under letter despite the fact that, as in 2003, the U.S. Constitution” and concluded a large number of institutions maintain that “[t]here is no conflict between the harassment policies that violate students’ civil rights laws that this Office enforces First Amendment rights. and the civil liberties guaranteed by the First Amendment.” Worryingly, the 2011 letter fails to replicate the exacting, speech-protective understand- Unfortunately, while Reynolds’ words ing of “hostile environment” sexual harass- still hold true, OCR’s April 4, 2011, ment contained in previous OCR guidance
25 Office for Civil Rights, “Dear Colleague” Letter, July 28, 26 Office for Civil Rights, “Dear Colleague” Letter, April 4, 2003, available at http://www.ed.gov/about/offices/list/ocr/firsta- 2011, available at http://www2.ed.gov/about/offices/list/ocr/ mend.html (last visited Nov. 26, 2012). letters/colleague-201104.html (last visited Nov. 26, 2012).
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letters, including both the 2001 Guidance27 protection. Instead, they expand the term and the 2003 Dear Colleague letter. In its to prohibit broad categories of speech 2001 Guidance, OCR explicitly noted that that do not even approach actual harass- its understanding of hostile environment ment, despite the fact that many such harassment was informed by the Supreme policies have been struck down by federal Court’s decision in Davis, whereas the 2011 courts.30 These vague and overly broad letter contains no such statement. harassment policies deprive students and faculty of their free speech rights. OCR’s apparent retreat from its earlier concerns about students’ free speech Having discussed the most common ways rights is particularly troubling in light of in which universities misuse the narrow the fact that hundreds of universities exceptions to free speech to prohibit persist in maintaining overly broad defi- protected expression, we now turn to nitions of harassment that restrict large the innumerable other types of university amounts of constitutionally protected regulations that restrict free speech and speech. Examples include: expression on their face. Such restrictions are generally found in several distinct types • The State University of New York at New of policies. Paltz’s harassment policy prohibits “Dis- tribution, display or discussion of any Anti-Bullying Policies written or graphic material that ridicules, Over the past few years, “bullying” has denigrates, insults, belittles, or shows garnered a great deal of media attention, hostility or aversion toward an individual bringing pressure on legislators and school or group because of protected status.”28 administrators—at both the K-12 and the college levels—to crack down even • At Auburn University, “harassment” in- further on speech that causes emotional cludes any “jokes … relating to a student’s harm to other students. On October 26, race, color, sex, religion, national origin, 2010, OCR issued a letter on the topic age and disability.”29 of bullying, reminding educational insti- tutions that they must address actionable These examples and many others harassment, but also that “[s]ome conduct demonstrate that too often, colleges and alleged to be harassment may implicate universities fail to limit their policies to the First Amendment rights to free speech the narrow definition of harassment that or expression.”31 For such situations, the is outside the realm of constitutional
30 See, e.g., DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008) (holding that Temple University’s sexual harassment 27 Office for Civil Rights, “Revised Sexual Harassment policy was unconstitutionally broad); Doe v. Michigan, 721 Guidance,” Jan. 19, 2001, available at http://www2.ed.gov/about/ F. Supp. 852 (E.D. Mich. 1989) (holding that University of offices/list/ocr/docs/shguide.html (last visited Sep. 27, 2011). Michigan’s discriminatory harassment policy was unconstitu- 28 “Non-Discrimination/Anti-Harassment Policies & Proce- tionally broad); Booher v. Board of Regents, Northern Kentucky dures,” available at http://www.newpaltz.edu/hr/policies.html University, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (last visited Oct. 24, 2012). (holding that Northern Kentucky University’s sexual harassment 29 “Policy Regarding Prohibited Harassment of Students,” policy was unconstitutionally broad). available at https://sites.auburn.edu/admin/universitypolicies/ 31 Office for Civil Rights, “Dear Colleague” Letter, Oct. 26, Policies/PolicyRegardingtheProhibitedHarassmentofStudents. 2010, available at http://www2.ed.gov/about/offices/list/ocr/let- pdf (last visited Oct. 24, 2012). ters/colleague-201010.html (last visited Nov. 20, 2012).
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letter refers readers back to the 2003 “Dear Colleague” letter stating that harass- ment 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 letter also urges an in loco parentis32 approach that is inappropriate in the college setting, where students are overwhelmingly adults.
The same problem exists in New Jersey’s Anti-Bullying Bill of Rights Act, which took effect on September 1, 2011.33 In addition to addressing bullying at the K-12 level, the Act requires all of New Jersey’s above: FIRE’s Azhar Majeed Speaks to Students at FIRE’s 2012 public colleges and universities to prohibit Campus Freedom Network Conference “harassment, intimidation and bullying,” which it defines as: student’s property, or placing a student in reasonable fear of physical or emo- [A] single incident or a series of inci- tional harm to his person or damage dents, that is reasonably perceived as to his property; being motivated either by any actual or perceived characteristic, such as race, (b) has the effect of insulting or color, religion, ancestry, national origin, demeaning any student or group of gender, sexual orientation, gender students; or identity and expression, or a mental, physical or sensory disability, or by (c) creates a hostile educational envi- any other distinguishing characteristic, ronment for the student that takes place on the property of the institution of higher education or at any (d) by interfering with a student’s function sponsored by the institution education or by severely or pervasively of higher education, that substantially causing physical or emotional harm to disrupts or interferes with the orderly the student. operation of the institution or the rights of other students and that: Under this definition, speech that does not rise to the level of actionable harassment (a) a reasonable person should know, (or any other type of unprotected speech) is under the circumstances, will have now punishable as “bullying.” It is critical to the effect of physically or emotionally note that the definition lacks any objective harming a student or damaging the (“reasonable person”) standard, including as bullying any conduct that “has the effect 32 “In the place of parents.” of insulting or demeaning any student or 33 New Jersey Anti-Bullying Bill of Rights Act, P.L. 2010, Chapter 122, available at http://www.njleg.state.nj.us/2010/Bills/ group of students.” As a result, students AL10/122_.PDF (last visited Nov. 20, 2012).
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must appraise all of their fellow students’ respect and civility to justify policies subjective individual sensitivities before that violate students’ free speech rights. engaging in controversial speech. While While a university is certainly permitted to the Act does require that there be a actively promote a tolerant and respectful “substantial disruption” to the educational atmosphere on campus, a school that environment, it places the onus squarely claims to respect free speech must not on the speaker to ensure that his or her limit expression to only the inoffensive speech will not cause another student, and agreeable. however sensitive or unreasonable, to react in a manner that is disruptive to Here are just two examples of restrictive the educational environment (such as by policies on tolerance, respect, and civility engaging in self-harm or harm to others). from the 2011–2012 academic year:
Unsurprisingly, FIRE has seen a dramatic • Stevens Institute of Technology requires increase in the number of university poli- students, under threat of “disciplinary cies prohibiting bullying. Many universities sanction,” to display “[r]espect by treating have addressed the issue by simply adding others with civility and decency.”36 the term “bullying,” without definition, to their existing speech codes—giving • Utah State University states: “All in- students no notice of what is actually teractions with faculty members, staff prohibited, and potentially threatening members, and other students shall be protected expression. Examples of such conducted with courtesy, civility, decency, recent additions include: and a concern for personal dignity.”37
• Southeastern Louisiana University’s While civility may seem morally uncon- “Student Code of Conduct” prohibits troversial, most “uncivil” speech is wholly “Stalking, bullying, and/or deliberate or protected by the First Amendment, inadvertent harassment which may or and is indeed sometimes of great po- may not be directed toward another litical and social significance. Much of person or group of people….”34 the expression coming from the civil rights movement of the 1950s and 60s • At Central Michigan University, “[a] would violate campus civility codes today. student shall not bully, haze, harass or Colleges and universities may encourage stalk any person or group of persons.”35 civility, but public universities—and those private universities that purport to respect Policies on Tolerance, students’ fundamental free speech rights— Respect, and Civility may not require it. Many schools invoke laudable goals like
34 “Student Code of Conduct,” Student Handbook, available at 36 “Conduct Required,” Student Handbook, available at http://www.selu.edu/admin/stu_affairs/handbook/files/2012_ http://s3.amazonaws.com/os_extranet_files_test/14472_27863_ student_handboo.pdf (last visited Oct. 26, 2012). handbook.pdf (last visited Oct. 26, 2012). 35 “Bullying/Hazing/Harassment/Stalking,” Code of Student 37 “Responsibilities of Students,” The Code of Policies and Rights, Responsibilities and Disciplinary Procedures, available at Procedures for Students at Utah State University, available at http://www.cmich.edu/about/leadership/office_provost/dean/Pag- http://www.usu.edu/studentservices/studentcode/article1.cfm es/Responsibilities-of-Students.aspx (last visited Oct. 26, 2012). (last visited Oct. 26, 2012).
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Internet Usage Policies Werenczak was eventually readmitted, but A great deal of student expression now only after intense public pressure generated takes place online, whether via email or on by FIRE. sites like Facebook and Twitter. Numerous universities maintain policies—many of A major part of the problem lies in which were originally written before the Syracuse’s speech codes. Syracuse’s Internet became one of students’ primary “Computing and Electronic Communica- methods of communication—severely re- tions Policy” defines online “harassment” stricting the content of online expression. as, among other things, sending any “annoying” or “offensive” messages.40 FIRE frequently finds universities with such policies punishing students or faculty Examples of other impermissibly restrictive members for constitutionally protected Internet usage policies in force during online speech. In September 2011, for the 2011–2012 academic year include example, Syracuse University effectively the following: expelled a graduate student from its School of Education because of comments he • The University of Wisconsin–Stout’s posted on Facebook complaining about “Information Technology Acceptable a racially charged comment made in his Use Policy” prohibits the “[d]istribution presence by a community leader. In the of any disruptive or offensive messages, course of his student teaching assignment, including offensive comments about Matt Werenczak—who is white—was intro- race, gender, hair color, disabilities, age, duced to a black community leader who sexual orientation, pornography, religious said that he thought the city schools should beliefs and practice, political beliefs, or hire more teachers from historically black national origin.”41 colleges. Werenczak later discussed the remark on Facebook, saying, “Just making • Purdue University Calumet forbids the sure we’re okay with racism. It’s not enough “[u]se of e-mail that degrades or demeans I’m ... tutoring in the worst school in the other individuals.”42 city, I suppose I oughta be black or stay in my own side of town.”38 In response, Policies on Bias and Hate Speech Werenczak received a letter from Social In recent years, colleges and universities Studies Education Coordinator Jeffery around the country have instituted policies A. Mangram stating that because of his and procedures specifically aimed at elimi- “unprofessional, offensive, and insensitive” nating “bias” and “hate speech” on campus. comments, he would be required to attend anger management, complete extra diver- 40 “Computing and Electronic Communications Policy,” sity coursework, and write a reflection available at http://supolicies.syr.edu/it/computing.htm (last vis- paper in order to even be considered for ited Oct. 27, 2012). 39 41 “Information Technology Acceptable Use Policy,” available at continued enrollment in the program. http://www.uwstout.edu/lit/upload/Info-Technology-Acceptable- Use-policy-09-66-2.pdf (last visited Oct. 27, 2012). 38 Facebook comments, July 20, 2011, available at http://thefire. 42 “Policy for Access and Use of Purdue’s Electronic Mail org/article/14069.html. System,” Purdue University Calumet Student Handbook, 39 Letter from Jeffery A. Mangram to Matthew Werenczak, Sep. available at http://www.purduecal.edu/studentaffairs/student- 7, 2011, available at http://thefire.org/article/14070.html. handbook.pdf (last visited Oct. 27, 2012).
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These sets of policies and procedures, Policies Governing Speakers, frequently termed “Bias Reporting Demonstrations, and Rallies Protocols” or “Bias Incident Protocols,” Universities have a right to enact reasonable, often include speech codes prohibiting narrowly tailored “time, place, and manner” extensive amounts of protected expression. restrictions that prevent demonstrations Universities tend to be heavily invested and speeches from unduly interfering with in such policies, having set up entire the educational process. They may not, regulatory frameworks devoted solely to however, regulate speakers and demonstra- addressing bias incidents. tions on the basis of content or viewpoint, nor may they maintain regulations that While speech or expression that is based burden substantially more speech than on a speaker’s prejudice may cause offense, is necessary to maintain an environment it is entirely protected unless it rises to the conducive to education. level of unprotected speech (harassment, threats, and so forth). The speaker’s bias Security Fee Policies has no bearing on whether or not the In recent years, FIRE has seen a number of speech is protected. Often, these protocols colleges and universities hamper—whether also infringe on students’ right to due intentionally or just through a misunder- process by allowing for anonymous report- standing of the law—the invitation of ing that denies students the right to confront controversial speakers by levying additional their accusers. security costs on the sponsoring student organizations. At Montclair State University, Here are some examples of bias incident for example, the group Students for a policies in force during the 2011–2012 Democratic Society (SDS) was informed in academic year: 2011 that, due to “a number of concerned phone calls and emails” regarding SDS’s • At Washington State University, students plan to host a lecture by education professor are instructed that if they “witness or and former Weather Underground leader experience” anything that “stereotypes” Bill Ayers, it would be expected to shoulder or “excludes” someone “based on some the cost of establishing and policing a part of their identity,” they must “report “protest area.”45 This is a clear violation of it immediately.”43 the right to free speech: any requirement that students or student organizations • At Lafayette College, a “bias-related hosting controversial events pay for incident” is “any incident in which extra security is unconstitutional because it an action taken by a person or group affixes a price tag to events on the basis of is perceived to be malicious … toward their expressive content. another person or group.”44 The U.S. Supreme Court addressed this
43 “Bias Hotline,” Washington State University Directory of exact issue in Forsyth County v. Nationalist Services, available at http://police.wsu.edu/DirectoryofServices. html#Bias_Hotline (last visited Oct. 27, 2012). 45 Letter from Peter Bonilla, Director of Individual Rights 44 “Bias Response Team,” Division of Campus Life, available Defense Program, FIRE, to Susan Cole, President, Montclair at http://studentlife.lafayette.edu/student-health-and-safety/bias- State University, Mar. 24, 2011, available at http://thefire.org/ response-team-brt/ (last visited Oct. 26, 2012). article/13105.html.
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Movement, 505 U.S. 123 (1992), when events scheduled outdoors or in class- it struck down an ordinance in Georgia room facilities. When the director of that permitted the local government to set Student Life determines that additional varying fees for events based upon how security beyond that normally provided much police protection the event would is necessary, the director of Student need. Criticizing the ordinance, the Court Life shall so inform the [Registered wrote that “[t]he fee assessed will depend on Student Organization]. The RSO shall the administrator’s measure of the amount be responsible for the cost of additional of hostility likely to be created by the security.”47 speech based on its content. Those wishing to express views unpopular with bottle Free Speech Zone Policies throwers, for example, may have to pay Many universities have regulations creating more for their permit.” Deciding that “free speech zones,” which limit rallies, such a determination required county demonstrations, and speeches to small or administrators to “examine the content out-of-the-way “zones” on campus. Many of the message that is conveyed,” the also require advance notice of any demon- Court wrote that “[l]isteners’ reaction stration, rally, or speech. Such “prior re- to speech is not a content-neutral basis straints” on speech are generally inconsis- for regulation…. Speech cannot be fi- tent with the First Amendment. nancially burdened, any more than it can be punished or banned, simply From a practical standpoint, it is easy because it might offend a hostile to understand why such regulations are mob.” (Emphasis added.) burdensome. Demonstrations and rallies are often spontaneous responses to recent Despite the clarity of the law on this or still-unfolding circumstances. Requiring issue, the impermissible use of security fees people to wait 48 or even 24 hours to to burden controversial speech is all hold such an event may interfere with too common on university campuses.46 the demonstrators’ message by rendering Many schools maintain policies setting it untimely and ineffective. Moreover, forth vague criteria by which security requiring demonstrators to obtain a permit costs will be assessed, inviting this type of from the university, without explicitly viewpoint discrimination. For example, the setting forth viewpoint-neutral criteria by University of Oklahoma’s policy on event which permit applications will be assessed, security states: is an invitation to administrative abuse.
Student Life, in conjunction with In June 2012, in a lawsuit brought by a the University of Oklahoma Chief of student group seeking to collect signatures Police, or his or her designee, shall on campus for an Ohio ballot initiative, review security requirements for all
47 “Facility Use and Solicitation Policy for Registered Student 46 For example, in recent years, FIRE has contested impermissi- Organizations,” available at http://www.ou.edu/content/student- ble security fees at Central Michigan University, Montclair State life/get_involved/student_organizations/policies/jcr%3acontent/ University, Temple University, the University of Arizona, the mid_par/download_0/file.res/Facility%20Use%20and%20 University of California–Berkeley, the University of Colorado– Solicitation%20Policy%20for%20Registered%20Student%20 Boulder, and the University of Massachusetts Amherst. Organizations090611.pdf (last visited Oct. 27, 2012).
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scheme violates the First Amendment and cannot stand.49
Despite this decision and others hold- ing free speech zones unconstitutional, numerous schools persist in maintaining them. For example:
• Southeastern Louisiana University’s policy on “Public Speech, Assembly, and Demonstrations” requires that “[a]n application to assemble publicly or demonstrate must be made seven (7) days in advance on a form provided by above: University of Cincinnati Campus, Aerial View the Assistant Vice President for Student Affairs….” The policy also establishes a federal judge in Ohio held that the just three areas on campus for “public University of Cincinnati’s free speech discussion and/or peaceful public assem- zone policy violated the First Amendment. bly or demonstration.”50 That policy required all “demonstrations, pickets, and rallies” to be held in a free • East Carolina University “permits speech zone comprising just 0.1% of the assemblies and public addresses … by university’s 137-acre West Campus, and University, student, and non-University- required ten days’ advance notice for sponsored individuals or groups at the any expressive activity taking place in University’s Designated Public Forum.” the free speech zone.48 Judge Timothy S. The Designated Public Forum “is defined Black wrote: as the area located in the four-sided green space adjacent to the Cupola, which This civil case presents the question, is adjacent to well-traveled pedestrian among others, as to whether the sidewalks, and has been open to public University of Cincinnati, a public speech by tradition and administrative university, may constitutionally subject approval. The extent of the site is the speech on its campus, by both students area to the South of the Cupola bounded and outsiders alike, to a prior notice by sidewalks on all four sides.”51 and permit scheme and restrict all “demonstrations, picketing, and rallies” to a Free Speech Area which constitutes less than 0.1% of the grounds of the 49 Id. at *2. campus. For the reasons stated here, 50 “University Policy on Public Speech, Assembly, and Demonstrations” Southeastern Louisiana University Student the Court determines that such a Handbook, available at http://www.selu.edu/admin/stu_affairs/ handbook/files/2012_student_handboo.pdf (last visited Oct. 28, 2012). 48 University of Cincinnati Chapter of Young Americans for 51 “Assemblies and Public Addresses in Designated Public Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Forum,” available at http://www.ecu.edu/cs-ecu/PRR/customcf/ Jun. 12, 2012). pdf.cfm?policyNumber=07.30.02 (last visited Nov. 2, 2012).
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What Can Be Done?
The good news is that the types of re- Virgin Islands, and, most recently, Ohio. strictions discussed in this report can Any red-light policy in force at a public be defeated. Students themselves are a university is extremely vulnerable to a tremendously effective vehicle for change constitutional challenge. Indeed, FIRE when they are aware of their rights and has had a 100% success rate in court willing to engage administrators in defense challenges to red-light speech codes. More- of them. Public exposure is also critical over, as speech codes are consistently to defeating speech codes, since uni- defeated in court, administrators are losing versities are usually unwilling to defend virtually any chance of credibly arguing these codes in the face of public criticism. that they are unaware of the relevant law, which means that they can be held Unconstitutional policies also can be personally liable when they are responsible defeated in court, especially at public for their schools’ violations of constitutional universities. Speech codes have been rights.52 struck down in federal courts across the country, including in California, Michigan, The suppression of free speech at American Pennsylvania, Texas, Wisconsin, the U.S. universities is a national scandal. But supporters of liberty should take heart. While many colleges and universities might seem at times to believe that they exist in a vacuum, the truth is that neither our nation’s courts nor its citizens look favorably upon speech codes or other restrictions on basic freedoms.
52 Azhar Majeed, “Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Admin- istrators for Violating Students’ Speech Rights,” Cardozo Public Law, Policy & Ethics Journal, Vol. 8, No. 3 (2010), p. 515.
left: FIRE Director of Legal and Public Advocacy Will Creeley
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Spotlight On: Censorship of Political Expression
In election years, FIRE typically sees an that promise free speech rights—are under increase in restrictions on the political ex- a clear obligation to protect such expression. pression of students and faculty. Frequently, Nonetheless, many schools—in policy and this occurs because schools misinterpret in practice—censor political expression. In their own institutional obligation to avoid September 2012, after a freshman at Ohio the appearance of favoring a particular party University (OU) taped a flyer critical of or candidate as a need to prevent students, both Governor Mitt Romney and President student organizations, and faculty members Barack Obama to her door,1 a resident from doing so in their individual capacities. advisor informed students via email that In other cases, censorship appears to stem “NO political posters/flyers should be hung simply from political reasons. in the hallways or on you[r] door until 14 days before an election.”2 Ten days later, One of the core motivations of the First following a room inspection, the student Amendment was to protect political speech received an inspection form listing the from official censorship or interference. violation of OU’s requirement that “political As the Supreme Court has declared, posters not [be] displayed outside room “Whatever differences may exist about until within 14 days of election date” as a interpretations of the First Amendment, “Corrective Action.”3 The inspection form there is practically universal agreement that also noted that failure to remove the poster a major purpose of that Amendment was to 1 Ohio University Students for Liberty Flyer, Sept. 4, 2012, protect the free discussion of governmental available at http://thefire.org/article/14972.html. affairs.” Mills v. Alabama, 384 U.S. 214, 218 2 Email from Andrea Stacho to James Hall Residents, Sept. 7, (1966). Therefore, far from being required 2012, available at http://thefire.org/article/14977.html. to prohibit students’ political expression, 3 Ohio University Department of Residence Life Room Health and Safety Inspection Form, Sep. 17, 2012, available at http:// public universities—and private universities thefire.org/article/14974.html.
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AS THE SUPREME COURT HAS DECLARED, “WHATEVER DIFFERENCES MAY EXIST ABOUT INTERPRETATIONS OF THE FIRST AMENDMENT, THERE IS PRACTICALLY UNIVERSAL AGREEMENT THAT A MAJOR PURPOSE OF THAT AMENDMENT WAS TO PROTECT THE FREE DISCUSSION OF GOVERNMENTAL AFFAIRS.”
within 48 hours could result in referral to residence hall windows. In that case, two OU’s disciplinary system. After FIRE wrote students were ordered to remove campaign to OU’s president reminding the university signs from their windows or else be blocked of its obligation to permit student political from class registration. The resulting uproar expression, the student received an email led UT–Austin president William Powers informing her that she was free to post Jr. to suspend the rule indefinitely, saying, political materials on her door and that “I believe that the free expression of ideas OU “will work to clarify posting policies is crucial to our educational mission.”6 immediately.”4 In spite of their clear obligations in this In November 2011, Auburn University area, universities continue to maintain ordered a “Ron Paul for President” cam- speech codes explicitly prohibiting political paign banner removed from the inside speech. Case Western Reserve University’s of a student’s dorm room window while “Facility Use” policy, for example, provides allowing other students to display numerous that no university facilities or services may banners, stickers, and flags. Although the be used “to advocate a partisan position.”7 university cited a new residence life policy banning the display of any “flags, banners, decals, or signs” in dormitory windows, the student gathered substantial photo- graphic evidence that the policy was being selectively enforced.5 The Auburn case was reminiscent of a similar incident during the 2008 election season, when the University of Texas at Austin (UT–Austin) attempted to enforce a policy banning all signs in
6 Azhar Majeed, “Victory for Freedom of Expression: University 4 Email from Micah McCarey to Jillyann Burns, Oct. 1, 2012, of Texas Permanently Suspends Window Posting Ban,” The Torch, available at http://thefire.org/article/14978.html. July 30, 2009, http://thefire.org/article/10919.html. 5 “Auburn University Bans Ron Paul Banner from Dorm Room 7 “Facility Use,” Case Student Handbook, available at http://stu- Window,” FIRE Press Release, Dec. 22, 2011, http://thefire.org/ dents.case.edu/handbook/policy/campus/facility.html (last visited article/13968.html. Nov. 5, 2012).
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Appendix A
SCHOOLS BY RATING
RED LIGHT California State University–Monterey Bay Adams State University California State University–Sacramento Alabama A&M University California State University–Stanislaus Alabama State University California University of Pennsylvania Alcorn State University Cameron University American University Carleton College Angelo State University Case Western Reserve University Arkansas State University Central Connecticut State University Armstrong Atlantic State University Central Michigan University Athens State University Central Washington University Auburn University Centre College Auburn University Montgomery Cheyney University of Pennsylvania Barnard College Chicago State University Bates College Clark University Bemidji State University Colby College Boston College Colgate University Boston University College of the Holy Cross Brandeis University Colorado College Bridgewater State University Columbia University Brooklyn College, Connecticut College City University of New York Cornell University Brown University Davidson College Bryn Mawr College Delaware State University Bucknell University Delta State University California Institute of Technology DePauw University California Maritime Academy Dickinson College California State Polytechnic University– East Carolina University Pomona East Stroudsburg California State University– University of Pennsylvania Channel Islands East Tennessee State University California State University–Chico Eastern Kentucky University California State University– Eastern Michigan University Dominguez Hills Edinboro University of Pennsylvania California State University–Fresno Emory University California State University–Fullerton Evergreen State College California State University–Long Beach Fitchburg State University California State University–Los Angeles Florida Gulf Coast University
A-1 SPOTLIGHT ON SPEECH CODES 2013
Florida International University McNeese State University Florida State University Michigan Technological University Fordham University Middle Tennessee State University Fort Lewis College Middlebury College Franklin & Marshall College Missouri State University Frostburg State University Missouri University of Science Georgetown University and Technology Georgia Institute of Technology Montana State University–Bozeman Georgia State University Montana Tech of the University Gettysburg College of Montana Governors State University Morehead State University Grambling State University Mount Holyoke College Grand Valley State University Murray State University Harvard University New York University Howard University Nicholls State University Humboldt State University North Carolina Central University Illinois State University Northeastern Illinois University Indiana State University Northeastern University Indiana University of Pennsylvania Northern Arizona University Indiana University, Southeast Northern Illinois University Iowa State University Northern Kentucky University Jackson State University Northwestern Oklahoma State University Jacksonville State University Northwestern University Johns Hopkins University Oakland University Kansas State University Oberlin College Kean University Ohio University Kenyon College Oregon State University Lafayette College Princeton University Lake Superior State University Purdue University Lehigh University Purdue University Calumet Lincoln University Rensselaer Polytechnic Institute Louisiana State University–Baton Rouge Rice University Macalester College Sam Houston State University Mansfield University of Pennsylvania San Francisco State University Marquette University Sewanee, The University of the South Marshall University Shawnee State University Massachusetts College of Liberal Arts Smith College
A-2 SPOTLIGHT ON SPEECH CODES 2013
Appendix A
SCHOOLS BY RATING
Southeastern Louisiana University University of Central Arkansas Southern Illinois University at University of Chicago Carbondale University of Cincinnati Southwest Minnesota State University University of Connecticut St. Olaf College University of Delaware State University of New York–Brockport University of Florida State University of New York–Fredonia University of Hawaii at Hilo State University of New York–New Paltz University of Houston State University Of New York– University of Idaho University at Buffalo University of Illinois at Chicago State University of New York College of University of Illinois at Springfield Environmental Science and Forestry University of Illinois Stevens Institute of Technology at Urbana-Champaign Stony Brook University University of Iowa Swarthmore College University of Kansas Syracuse University University of Louisville Tarleton State University University of Maine–Presque Isle Tennessee State University University of Massachusetts–Amherst Texas A&M University–College Station University of Massachusetts at Lowell Texas Southern University University of Miami Texas Tech University University of Michigan–Ann Arbor Texas Woman’s University University of Minnesota–Morris The College of New Jersey University of Minnesota–Twin Cities The Ohio State University University of Missouri–Columbia Trinity College University of Missouri at St. Louis Troy University University of Nevada, Las Vegas Tufts University University of Nevada, Reno Tulane University University of New Hampshire Union College University of New Mexico University of Alabama University of New Orleans University of Alabama at Birmingham University of North Carolina–Chapel Hill University of Alaska Anchorage University of North Carolina–Greensboro University of Alaska Southeast University of North Carolina University of Arkansas–Fayetteville School of the Arts University of California, Irvine University of North Dakota University of California, San Diego University of North Texas University of California, Santa Cruz University of Northern Colorado
A-3 SPOTLIGHT ON SPEECH CODES 2013
University of Northern Iowa Western Michigan University University of Notre Dame Western State College of Colorado University of Oregon Westfield State University University of Richmond William Paterson University University of South Alabama Winston Salem State University University of South Carolina Columbia Worcester State University University of South Florida Wright State University University of Southern California Youngstown State University University of Southern Indiana University of Southern Mississippi University of Texas at Arlington YELLOW LIGHT University of Texas at Austin Amherst College University of Texas at El Paso Appalachian State University University of Texas at San Antonio Ball State University University of Toledo Bard College University of Tulsa Binghamton University, University of Wisconsin–Eau Claire State University of New York University of Wisconsin–Green Bay Bloomsburg University of Pennsylvania University of Wisconsin–La Crosse Bowdoin College University of Wisconsin–Madison Bowling Green State University University of Wisconsin–Oshkosh California Polytechnic State University University of Wisconsin–Stout California State University–Bakersfield University of Wyoming California State University–East Bay Utah State University California State University–Northridge Utah Valley University California State University– Valdosta State University San Bernardino Vanderbilt University California State University–San Marcos Virginia Commonwealth University Claremont McKenna College Wake Forest University Clarion University of Pennsylvania Washington State University Clemson University Washington University in St. Louis Colorado Mesa University Wayne State University Colorado School of Mines Wesleyan University Colorado State University West Chester University of Pennsylvania Dakota State University West Virginia University Drexel University Western Illinois University Duke University Western Kentucky University Eastern New Mexico University
A-4 SPOTLIGHT ON SPEECH CODES 2013
Appendix A
SCHOOLS BY RATING
Elizabeth City State University North Carolina State University–Raleigh Fayetteville State University North Dakota State University Florida Atlantic University Northern Michigan University Framingham State University Northwestern State University Furman University Occidental College George Mason University Oklahoma State University–Stillwater George Washington University Pennsylvania State University– Grinnell College University Park Hamilton College Pitzer College Harvey Mudd College Plymouth State University Haverford College Pomona College Henderson State University Reed College Idaho State University Rhode Island College Indiana University–Bloomington Richard Stockton College of New Jersey Indiana University–Kokomo Rogers State University Indiana University– Rutgers University–New Brunswick Purdue University Columbus Saginaw Valley State University Indiana University– Saint Cloud State University Purdue University Fort Wayne San Diego State University Indiana University– San Jose State University Purdue University Indianapolis Scripps College Indiana University South Bend Skidmore College Indiana University, East Slippery Rock University of Pennsylvania Indiana University, Northwest Sonoma State University Keene State College South Dakota State University Kentucky State University Southern Methodist University Kutztown University of Pennsylvania Stanford University Lewis-Clark State College State University of New York–Albany Lock Haven University of Pennsylvania Temple University Massachusetts Institute of Technology The City College of New York Metropolitan State University Towson University Miami University of Ohio University of Alabama in Huntsville Michigan State University University of Alaska Fairbanks Millersville University of Pennsylvania University of Arizona Montclair State University University of California–Riverside New Jersey Institute of Technology University of California–Merced North Carolina A&T State University University of California, Berkeley
A-5 SPOTLIGHT ON SPEECH CODES 2013
University of California, Davis Williams College University of California, Los Angeles Yale University University of California, Santa Barbara University of Central Florida University of Central Missouri GREEN LIGHT University of Colorado at Boulder Arizona State University University of Denver Black Hills State University University of Georgia Carnegie Mellon University University of Kentucky Cleveland State University University of Maine Dartmouth College University of Maryland–College Park James Madison University University of Massachusetts Mississippi State University at Dartmouth Shippensburg University of Pennsylvania University of Montana The College of William and Mary University of Montevallo University of Mississippi University of North Alabama University of Nebraska–Lincoln University of North Carolina–Asheville University of Pennsylvania University of North Carolina–Charlotte University of Tennessee–Knoxville University of North Carolina–Pembroke University of Utah University of North Carolina–Wilmington University of Virginia University of Oklahoma University of Pittsburgh University of Rhode Island NOT RATED University of Rochester Baylor University University of South Dakota Brigham Young University University of Southern Maine Pepperdine University University of Vermont Saint Louis University University of Washington United States Military Academy University of West Alabama United States Naval Academy University of West Georgia Vassar College Virginia Polytechnic Institute Worcester Polytechnic Institute and State University Yeshiva University Washington & Lee University Wellesley College Western Carolina University Whitman College Wichita State University
A-6 SPOTLIGHT ON SPEECH CODES 2013
Appendix B
RATING CHANGES, 2011–2012 ACADEMIC YEAR
SCHOOL NAME 2010–2011 RATING 2011–2012 RATING
Appalachian State University RED YELLOW
Bowdoin College RED YELLOW
Claremont McKenna College RED YELLOW
Colorado Mesa University RED YELLOW
California State University–Bakersfield RED YELLOW
California State University–San Bernardino RED YELLOW
George Mason University RED YELLOW
Indiana University Northwest RED YELLOW
Lewis-Clark State College RED YELLOW
Michigan State University RED YELLOW
Mississippi State University RED GREEN
North Dakota State University RED YELLOW
Northwestern State University RED YELLOW
Richard Stockton College of New Jersey RED YELLOW
Shawnee State University YELLOW RED
University of California–Riverside RED YELLOW
University of Delaware YELLOW RED
University of Georgia RED YELLOW
University of Mississippi RED GREEN
University of North Carolina–Chapel Hill YELLOW RED
University of North Texas RED YELLOW
University of South Dakota GREEN YELLOW
University of Washington RED YELLOW
University of West Alabama RED YELLOW
Westfield State University YELLOW RED
B-1 SPOTLIGHT ON SPEECH CODES 2013
Appendix C
STATE-BY-STATE INFORMATION (MINIMUM FIVE INSTITUTIONS RANKED)
ALABAMA
CALIFORNIA
COLORADO
CONNECTICUT
FLORIDA
GEORGIA
ILLINOIS
INDIANA
KENTUCKY
LOUISIANA
MAINE
MARYLAND
MASSACHUSETTS
MICHIGAN
MINNESOTA
MISSISSIPPI
MISSOURI
NEW JERSEY
NEW YORK
OHIO
NORTH CAROLINA
OKLAHOMA
PENNSYLVANIA
TENNESSEE
TEXAS
VIRGINIA
WASHINGTON
WISCONSIN
0 INSTITUTIONS 5 10 15 20 25
RED LIGHT YELLOW LIGHT GREEN LIGHT NOT RATED
C-1 SPOTLIGHT ON SPEECH CODES 2013
Appendix D
PERCENTAGE OF RED LIGHT INSTITUTIONS OF TOTAL INSTITUTIONS RANKED
60%
50% 66.6% 66.6% 50% 25%
66.6% 77.8% 70.8% 100% 33.3% 0% 61.5% 100% 75% 33.3% 83.3% 75% 53.3% 0% 100% 76.9% 55.6% 50% 100% 43.8% 100% 50% 100% 25% 45.2% 66.6% 71.4% 40% 77.8%
42.1% 83.3% 33.3% 50% 50% 75% 33.3%
66.6% 71.4% 71.4% 87.5% 87.5%
75%
66.6% RATED INSTITUTIONS 75—100% RED LIGHT 50—75% RED LIGHT 25—50% RED LIGHT 100% 0—25% RED LIGHT
D-1
THE MISSION OF THE FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION IS TO DEFEND AND SUSTAIN INDIVIDUAL RIGHTS—INCLUDING FREEDOM OF SPEECH, LEGAL EQUALITY, DUE PROCESS, RELIGIOUS LIBERTY, AND SANCTITY OF CONSCIENCE—AT AMERICA’S COLLEGES AND UNIVERSITIES.
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