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.