When an American student shows up at college, he or she is usually eighteen years old. That’s old enough to vote, and old enough to join the armed forces to defend the country. But if you’re a student at many American colleges and universities, regardless of your age, you surrender many of your First Amendment rights—the right to freedom of speech—the instant you set foot on campus.
Monitoring this abrogation of Constitutional rights by universities is the business of FIRE, The Foundation for Individual Rights in Education. FIRE not only investigates and publishes civil-liberties violations, but negotiates settlements and even takes colleges to court. If you think they’re a bunch of right-wing crackpots determined to get rid of “political correctness” on campus, think again: they’ve defended both conservatives and liberals, ranging from PETA to Christian organizations, and their board of advisers has recently included Wendy Kaminer, Roy Innes, Nat Hentoff, and John Searle. You can think of it as an ACLU for colleges.
FIRE stands watchdog over several problematic university policies that, they claim, violate the First Amendment. These include:
- Speech codes that prevent any form of “offensive speech,” “hate speech” or “bias speech.”
- Harassment policies that don’t meet the legally-determined definition of harassment
- Policies that restrict gatherings and demonstrations to small, out-of-the-way corners of campus
- University demands that organizations that sponsor controversial speakers pay extra for campus security
- Policies that prohibit speech that supposedly “incites” bad behavior or is provocative—speech that, according to the Supreme Court (not the present one!), doesn’t meet the standards of incitement or provocation in the wider society.
Every year FIRE issues a report that documents First-Amendment violations across the country. It concentrates on public (state) colleges and universities, since by law those institutions must adhere to free-speech policies determined by the courts; but they also document violations in private universities, since many of these advertise their adherence to free-speech policies. FIRE has just released its latest report, “Spotlight on speech codes 2011: the state of free speech on our nation’s campuses,” which you can download by clicking the link. If you work or study at an American university, or are simply interested in these issues, I’d highly recommend reading it: it’s a short 24 pages (sans appendices) with pictures and big print, and you’ll get quite an education about the First Amendment.
The report also gives some chilling and ludicrous examples of university policies, and cites the court cases that show those policies are illegal. For example, re charging student groups extra for controversial speakers, the report notes: “The U.S. Supreme Court addressed exactly this issue in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) when it struck down an ordinance in Georgia that permitted the local government to set varying fees for events based on how much police protection the event would need.” [The court wrote that] “Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.”
Here’s the bad news: a large majority of public universities (67%!) have official policies that violate—often egregiously—the First Amendment. The situation in private colleges is nearly as bad: 65% are red-lighters. The only good news is that the percentage has dropped over the last few years. But, as FIRE notes, any percentage above zero is unacceptable.
From the report:
FIRE surveyed publicly available policies at institutions ranked among the top 100 “Best National universities” and the top 50 “Best Liberal Arts Colleges,” as rated in the 2009 “Best Colleges” issue of U.S. News & World Report. FIRE also surveyed an additional 237 major public universities.
[JAC: FIRE sorts colleges into three categories: “green light” ones are okay vis-à-vis free speech, “yellow light” colleges have policies that could be interpreted as restricting some protected speech, and then there are the “red-light” institutions:]
A “red-light” institution is one that has at least one policy both clearly and substantially restricting freedom of speech, or that bars public access to its speech-related policies by requiring a university login and password for access. A “clear” restriction is one that unambiguously infringes on protected expression.
For example, a ban on “offensive speech” would be a clear violation (in that it is unambiguous) as well as a substantial violation (in that it covers a great deal of what would be protected expression in the larger society). Such a policy would earn a university a red light.
Of the 390 schools reviewed by FIRE, 261 received a red-light rating (67%), 107 received a yellow-light rating (27%), and 12 received a green-light rating (3%). FIRE did not rate 10 schools (3%). (See Figure 1.) For the third year in a row, the percentage of public schools with a red-light rating has declined. Three years ago, 79% of public schools received a red-light rating. Two years ago, that number declined to 77%, and last year it dropped again to 71%. This year, 67% of public universities surveyed received a red light rating. (See Figure 2.) Since public universities are legally bound to protect their students’ First Amendment rights, any percentage above zero is unacceptable.
The percentage of private universities earning a red-light rating also has declined this year—from 70% to 65%. While private universities are not legally bound by the First Amendment, most make extensive promises of free speech to their students and faculty. Speech codes impermissibly violate those promises. Of the schools reviewed by FIRE over the past year, 104 were private and 286 were public. Of the private schools reviewed, 65% received a red light rating, 24% received a yellow-light rating, 3% received a green-light rating, and 8% were not rated. (See Figure 3.) Of public schools reviewed, 67% received a red-light rating, 29% received a yellow-light rating, and 3% received a green-light rating. Two schools—both military institutions, for a total of one percent of public schools surveyed—were not rated. (See Figure 4.).
Appendix B of the report lists the colleges and their rankings. You can look up your own school, if it was ranked, simply by entering its name at the upper-left corner of the FIRE webpage and following the links. Sadly, I discovered that my own school, The University of Chicago (a private university) gets an overall red light-rating for its harassment policies, its use of “free-speech zones,” and restrictions on “offensive, bias, and hate speech”. (Some of these individual policies get red lights, others yellow, but the total university ranking is red.) Nevertheless, our student manual asserts that “The primary function of a university is to discover and disseminate knowledge by means of research and teaching. To fulfill this function, a free interchange of ideas is necessary not only within the university but also with the larger society. At the University of Chicago, freedom of expression is vital to our shared goal of the pursuit of knowledge.”
But the U of C is not unique among “elite” schools: Harvard University is even worse.
It’s baffling to me that universities, especially public ones, can get away with speech codes and behavior policies that violate the First Amendment. Yes, I understand that universities can give appealing reasons why restrictive speech codes and other such violations are conducive to an atmosphere of “respectful learning.” But students shouldn’t—and, at public universities, don’t—surrender their Constitutional rights when they matriculate, and, at 18 years of age, they’re surely ready to live by the same rules that apply to their peers who aren’t in college. More important, free speech is supposedly the basis of a university education: the ability to follow ideas wherever they lead, regardless of how offensive they might seem.
Now I do recognize that some forms of harassment and incitement are indeed illegal, and have been ruled as such by the courts for inimical consequences that outweigh First Amendment rights. And surely colleges have the right to prohibit such behaviors. But they have no business prohibiting students from exercising their court-protected First Amendment rights.
Although I agree from a policy perspective that universities should not be in the business of limiting speech, we shouldn’t lose track of the difference between a university and an arm of state or federal government. Sometimes, with public universities, university rules may rules made by the state. Still, with a private university forcing student groups to cover attendant security costs doesn’t strike me as a violation of the first amendment because it’s not state action. I still think the university should cover the cost though because you don’t want the potential for violent reactions to chill free speech.
Thanks for posting this. I was only aware of the 28th Amendment: Right to Brown Nose the Dean of Academic Affairs.
“University demands that organizations that sponsor controversial speakers pay extra for campus security.”
This means you’ll need the Cloud Security Alliance.
Are the faculty affected by these “problematic university policies”?
Yes. Administrators at universities try to gag the teachers and other employees all the time.
I note that the percentage of “green light” public institutions has hardly changed at all over the past three years; most of the “red” has only gone to “yellow”.
The report only charted the trend for public institutions, not private ones. Past reports reveal that until this year, the percentage of red-light private institutions had increased three years running. I surmise that it’s harder to change such policies at private schools because, whereas a student can sue a public school for violations of the first amendment, private schools aren’t obligated to observe it; all you can do is use the institution’s internal grievance process to complain that the institution isn’t living up to its promises, and since the fox is guarding the henhouse, it’s hard to make the institution listen.
Unsurprisingly, the private “greens” have hardly changed, either; they’ve varied from 3% to 4% over the period examined.
Aww … it seems they chose to leave out the Mickey Mouse universities like “Liberty University” which is anything but liberal.
They do so because such institutions make it clear up front that they don’t support free speech. Fair enough.
That raises the question whether FIRE brings suit independently or whether a student has to go to them to get the ball rolling. If the latter, that probably explains why LU isn’t on the list.
But also in VA, noted with some satisfaction & surprise, Wm & Mary has gone green in the past year or so (surprise since Henry Kissinger was recently their ceremonial chancellor, & Michael Powell – Colin’s son and ex FCC chair – was recently head of their board).
They discuss standing on pp. 14-15. In general I’d say FIRE never has standing, though they sometimes file amicus briefs.
Oh, typos. How I hate you. That should read:
Although I agree from a policy perspective that universities should not be in the business of limiting speech, we shouldn’t lose track of the difference between a university and an arm of state or federal government. Sometimes, with public universities, university rules may be rules made by the state. Still, with a private university forcing student groups to cover attendant security costs doesn’t strike me as a violation of the first amendment because it’s not state action. I still think the university should cover the cost though because you don’t want the potential for violent reactions to chill free speech.
I didn’t go to college in the US but where I come from this is the time when people really start to get politically involved and become passionate about various causes. This is the time in a persons life when they really start to think about what their own ideas are. University was a time when various groups were always protesting something, some i agree with, some i didn’t. If you don’t have the freedom to speak your mind in college, I don’t know what the point of college is!
Harvard University is even worse.
Politically connected donators have free rein. Where is the problem?
Also, Harvard is private—and the First Amendment was never intended to apply to private universities.
At least US have explicit rules. I don’t know how it works here. [Sweden.]
So, US being litigious, having “court-protected First Amendment”, is this what calls for a class action?
“Get your fill of boobs here! Bare ass action on display!”
It’s worth following up on the details. Rensselaer Polytechnic Institute, for example, received a “red light” because the campus Republican club got into a pissing match with the Fine Arts department. Apperently the latter hosted a video game in which the object was to assassinate president Bush, and the former protested. The net result is that Fire gives the entire university a red light.
No the reason Rensselaer Polytechnic institute received a red light was their sections on Sexual Harassment and the internet. From Rensselaers hand book
“Engaging in sexually suggestive conversation that is
unwelcome or physical contact or touching another
student or employee in a way that is unwelcome.
*Displaying, storing, or transmitting pornographic or
sexually oriented materials ….”
and on the internet
“Computer Harassment includes, but is not limited to, using Rensselaer’s computer systems or networks: (1) to annoy, harass, terrify, intimidate, threaten, offend or bother another person (for example, by conveying abusive, profane, defamatory or offensive messages, obscene language, pictures, or other materials, or threats of bodily harm);”
The problem is these policies are overly broad without clear guidelines and well the ban activites that are legal free speech.
“Computer Harassment includes, but is not limited to, using Rensselaer’s computer systems or networks…” A legal argument could be made that, as a private institution, RPI can dictate rules for use of their network without thereby violating the 1st Amendment. Indeed, I don’t think I’ve ever attended a university that didn’t have such a policy, nor held a job for an employer that didn’t.
Of course they can violate the 1st amendment all they like as they are a private college and can make any nearly any policy they want that resticts 1st amendment rights. The issue FIRE has with them is that the school claims to be free and open to debate and these policies directly goes against this mission.
The real issue though is you claimed that they got a red light because a republican club got into a pissing match when that had nothing at all to do with the reason why they where given a red light.
Surely in this case they don’t need rules and regulations, they can just use the laws of the land? I mean there’s no need for rules against murder is there?
You know FIRE gets funding from Templeton, right? And that they’ve backed David Horowitz’s crackpot laws requiring ideological political diversity in university hiring?
To say that this group is any sort of “ACLU for colleges” is disingenuous. Their political agenda is deeply reactionary, and oriented towards replacing academic freedom as we understand it. Some of their legislative allies have hoped that the “academic bill of rights” will require not just that more conservatives be hired, but that biology departments will have to hire creationists for “balance.”
If you want an ACLU equivalent for colleges, look to the AAUP, or the ACLU itself.
If you want to thwart Horowitz’s initiatives, then restrict political proselytizing by professors in the classroom. Free speech should not include situations where the listeners have no choice but to listen and are at some point judged by the speaker. Political speech by wardens and jailers to prisoners would never be tolerated, yet academia has countenanced the equivalent for decades. Horowitz is reacting to this violation of student rights.
I can understand the outrage involving public universities, but if you are attending a private university, your First Amendment rights end at the college gate. I have no problem with private red light schools, but public schools are a different matter.
Is nobody reading my post, in which I drew a clear distinction between private and public universities? Only the latter must adhere to the First Amendment by law. Yes, private universities can do what they wish, but many of them tout their adherence to free-speech principles and so this can be evaluated by looking at how the universities really behave?
Prof Coyne, your distinction was quite clear, I think. FIRE, however, doesn’t seem to share that view, so a sort of “user beware” with respect to their grading system is probably in order.
No FIRE understands the distinction very well this is in fact what they say on the issue.
“For private universities, we turn to the stated mission and policies of the university itself to see if the university advertises itself as an institution that respects free speech and whether its policies are in accord with that promise. The vast majority of private institutions do hold themselves out as protecting free speech, so when they betray their promises, FIRE objects.”
If you claim to be an instution that values free speech or open debate they will actually hold you to your word.