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Education Reporter

'Overwhelming Majority' of Universities Restrict Free Speech

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First Amendment rights are under attack on college campuses across the nation, according to a report released by the Foundation for Individual Rights in Education (FIRE) in December. Out of 334 schools included in FIRE's study, 229 have at least one policy that "both clearly and substantially restricts freedom of speech." FIRE gave these 229 schools a "red light" designation. Almost 100 others received a "yellow light" for ambiguous policies. Only eight schools earned FIRE's "green light," meaning that they have no policies limiting constitutionally protected free speech.

Although the law generally does not require private institutions to guarantee First Amendment rights, most private universities do promise their students and professors the same freedoms that are enjoyed in society at large. Public universities cannot legally make any policy that restricts constitutionally protected speech. However, the FIRE report found that public colleges and universities are actually more likely than private ones to violate students' constitutional rights. Legal challenges to public universities' speech codes have resulted in federal courts striking down the policies, notably, at the University of Michigan, the University of Wisconsin, and Shippensburg University of Pennsylvania. Campus speech codes have nevertheless proliferated and grown even more restrictive. Many schools have policies that, if enforced, would squelch any public debate or statement of a controversial opinion, of any kind, at any time. These schools claim to espouse academic freedom, tolerance and free speech; but at the same time, they use their speech codes to censor and silence students who express themselves in ways the institution finds "offensive."

Wolves in Sheep's Clothing

Unconstitutional speech codes slip into school policies under four main guises, according to FIRE: disorderly conduct policies, policies on tolerance, respect and civility, harassment policies, and free speech zone regulations.

In its tolerance policy, UNC Greensboro prohibits "disrespect for persons." Rutgers prohibits "'joking' comments (between friends, roommates, floormates) . . . which may be racist, sexist, heterosexist (homophobic)." At Jacksonville State University in Alabama, students may not "offend" anyone "on university owned or operated property."

In its harassment policy, Davidson College prohibits "comments or inquiries about dating," "patronizing remarks (. . . i.e. . . . referring to an adult as 'girl'. . .)," "innuendos," and "dismissive comments." Cal Tech defines harassment in part as "speech that demeans . . . another because of his or her personal characteristics or beliefs." In contrast, the Supreme Court has defined harassment in an educational context as conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Colleges have punished numerous students in recent years for harassment, disorderly conduct or abuse, when in fact the students were engaging in constitutionally protected free speech.

For example, shortly after the 9/11 terrorist attacks, Zewdalem Kebede, a student at San Diego State University, challenged a group of four other students who were loudly celebrating the attacks. School judicial officials took disciplinary action against Kebede, accusing him of "abusive behavior" toward the other students, though he was indisputably within his rights.

Often, speech codes and the associated mentality result in administrators punishing or restricting students based on vague and nebulous charges. In 2005, an administrator at Seminole Community College in Florida prohibited a student from distributing literature on slaughterhouses. The pamphlets came from PETA (People for the Ethical Treatment of Animals), and the administrator gave as her chief justification, "PETA instills a feeling in me that I can't, and won't, take a chance on campus."

Enforcing the Code

The Speech Code Report is a must-read for anyone who cares about freedom of speech and its future in our nation. FIRE's case files also expose how some institutions enforce the unconstitutional limits they place on students' expression. The latest case involves Michigan State University's Student Accountability in Community seminar (SAC), which the university describes as an "early intervention" for students who use "power-and-control tactics." MSU's sexual harassment policy stays relatively close to the Supreme Court's definition, and the school does not restrict speech through any official tolerance or respect policies. However, the university has found that it doesn't need an unconstitutional harassment policy to enforce what FIRE president Greg Lukianoff has called "compelled speech" and "blatant thought reform." Under current regulations, MSU judicial officials can require a student to attend SAC for any of the following actions, among many others:

  • "making sexist, homophobic, or racist remarks at a meeting"

  • "humiliating a boyfriend or girlfriend"

  • "insulting instructors"

  • "aggressive behavior" — judicial administrators have sent students to SAC for slamming a door during an argument, and for playing a practical joke on another student.

The program materials further describe "power-and-control tactics" to include:

  • "perfectionism"

  • "using others to relay messages"

  • "honeymooning" others [unclear what this means]

  • "acting 'crazy' or invincible, like 'I have nothing to lose.'"

Students who demonstrate such behaviors and are required to attend SAC pay $50 for four one-hour sessions. If they refuse to attend, the school places a hold on their student accounts, making it impossible for them to register, and thus effectively expelling them.

At the SAC sessions, students must fill out questionnaires about their actions, motivations, and what they should have done instead. The SAC facilitator often requests the student to fill out the questionnaire multiple times until the student is no longer "obfuscating" — in other words, until the student writes what the administrator thinks he should write.

In a letter to MSU, Lukianoff called this procedure a major violation of freedom of speech and conscience. "Such utter disregard for the autonomy and agency of others is the hallmark of totalitarianism and has no place at an institution of higher learning in any free society, let alone a public university in the state of Michigan."

Lukianoff sat in on a training seminar several years ago on how to implement SAC-like programs at other schools. One participant asked, "How do I deal with people with religious beliefs that 'justify' their anger?" Lukianoff reports that one of the trainers representing MSU responded, "Religious beliefs may be a form of obfuscation."

FIRE has challenged MSU and asked that the institution dismantle SAC. A school official responded to say that MSU would review the program.

Read FIRE's Speech Code Report at www.thefire.org/speechcodereport.php.

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