Tag Archives: speech codes

A Champion of Free Speech Takes on the Muzzled Campus

Harvey Silverglate delivered these remarks upon receiving the Manhattan Institute’s Alexander Hamilton award Monday, May 9th at a dinner in New York City. Silverglate is a Cambridge attorney, a veteran defender of civil rights and civil liberties, and co-founder, along with University of Pennsylvania professor Alan Charles Kors, of the Foundation for Individual Rights in Education (FIRE).

I have dedicated much of my career to two contests that are consuming our nation, the ramifications of which will impact generations to come as well as the health of the republic itself.

I am referring to, first, the capacity of the criminal law, especially federal law, to turn all of us into criminals, at the government’s whim, for engaging in what to us appear to be the most benign personal and professional actions or inactions.

And, second, the effort, well underway, to destroy the liberal arts university by replacing the quest for human knowledge with the indoctrination of students into truth as it is postulated by self-righteous fanatics who think they have a monopoly on human wisdom, when in fact all they really have monopolized are the levers of academic and administrative power.Harvey Silverglate

And, with respect to these two areas – due process and fairness in the criminal law, and free speech and thought and procedural fairness on college campuses – I have long taken comfort in the reliability of allies such as the Manhattan Institute. This is the reason that, despite my reputation for accepting rather few invitations, I gratefully accepted the Manhattan Institute’s invitation to venture to New York (where, by the way, I was born, so this is not foreign territory to me) to accept, along with my co-recipient the redoubtable Bruce Kovner, the Institute’s Alexander Hamilton Award.

Thank you, Manhattan Institute, and the Institute’s leadership – President Larry Mone in particular, and the entire Board – for this honor, but, even more important, for the Institute’s ceaseless support for civilization and sanity in my two areas of interest, the criminal law and our institutions of higher education.

Interestingly, I noticed that dangerous trends in each of these two areas accelerated around the same time –the mid-1980s. Might the explanation, I asked myself, be that suddenly the universities were accepting a more diverse student body? Rather than celebrate this liberalization of American society and academic culture, I wondered, perhaps the colleges, fearing that students of different racial, religious, and social backgrounds would clash with one another, expanded the student-life bureaucracies to, in their view, keep the peace.

Regardless of the justification, definitions of “harassment” were adopted that were so vague and broad so as to escalate the numbers of disciplinary proceedings, many of which were deemed confidential so that the outside world had no idea what was happening. Speech codes popped up that sought to prevent students from insulting or offending one another, but in practice the codes strangled the academic enterprise. Kangaroo courts were established to adjudicate the many violations of the new rules. Remember that we’re talking about liberal arts colleges, not prisons, not re-education camps!

At about the same time, I noted a proliferation of prosecutions in the federal courts that were ensnaring defendants who, it seemed to me, had conducted themselves, if not superbly, then at least within legal limits. This ensnaring was enabled by the greatly expanded use of inherently vague federal statutes, such as “fraud.” The concept of “fraud” suddenly meant whatever a United States Attorney wanted it to mean, with the target often being selected for the personal aggrandizement of the prosecutor’s reputation and future career prospects rather than for the protection of the public.

The bottom line was that I saw these major institutions – the college campuses and the federal courts – take a turn toward precepts and practices that furnished a nutrient-laden petri dish for an experiment in an authoritarianism that was very different from the America I was familiar and comfortable with.

The Foundation for Individual Rights in Education’s co-founders, University of Pennsylvania Professor Alan Charles Kors and I, established FIRE in 1999, a year after Professor Kors and I published our book, The Shadow University: The Betrayal of Liberty on America’s Campuses. That book followed Professor Kors’ representation, with some legal advice from me, of an undergraduate who was being persecuted in a Penn campus tribunal in the famous “water buffalo” case, where a well-meaning student named Eden Jacobowitz addressed a group of undergraduate women who were raucously celebrating their sorority’s anniversary just outside his dorm window as he was studying. He shouted “shut up, you water buffalo!” The women being African-Americans, this was deemed by them, and by student-life administrators, to constitute “racial harassment.”

It turned out, actually, that in the offending student’s first language, Hebrew, the common slang term behema reasonably translates into “water-buffalo” and refers to a rowdy or thoughtless person. Penn’s administrators, unaware of, and uninterested in, Jacobowitz’s cultural background, assumed that the water buffalo was native to Africa (it’s not), and from this they extrapolated their hate speech theory. In the face of derisive worldwide publicity, the campus bureaucrats backed down, but it turned out to be merely a strategic retreat, not a true surrender.

Sanity’s well-publicized victory in the water buffalo case triggered a flood of students seeking assistance from Professor Kors and me. These beleaguered individuals were suffering not only from unfair persecutions, but also were being cheated out of a genuine liberal arts education. The liberal arts are not readily compatible with censorship and mindless ideological persecution. It is impossible to teach, and to learn, in the liberal arts arena under such conditions of hypersensitivity and authoritarianism. Indoctrination was replacing true academic study. From the day students arrive as freshman they are subjected to “sensitivity training” engineered by burgeoning student life bureaucrats who intrude into their most intimate lives and thoughts. I recognized that students, and even dissenting faculty, were at the mercy of a new regime, something of a cross between Kesey’s One Flew Over the Cuckoo’s Nest and Kafka’s The Trial.

Kors and I could not handle the volume, and so FIRE was born out of sheer necessity. I at the time had assumed that surely the ludicrousness of the campus persecutions would result in the phenomenon burning itself out within less than ten years. It was, I told myself, a momentary social panic. FIRE would be a temporary project. The burning of witches in Salem, after all, ended rather abruptly when the Supreme Court of Massachusetts decided that enough was enough and put an end to the trials in 1693. That scourge lasted but one year.

Well, FIRE is in its 17th year, with no end in sight. We are in trench warfare.

The success of The Shadow University triggered my next project.

I wrote a book about the decline of justice in the federal criminal system, which I titled Three Felonies a Day: How the Feds Target the Innocent. As you might intuit by the title, my thesis is, essentially, that the average American arguably commits three federal felonies in a typical day, but does not even realize it. All that is needed is an ambitious federal prosecutor, and a prosecution is born. One has to pray that his case is assigned to a judge who sees through the scam. Most do not. Like campus administrators, too many judges tend to be either cynics or true believers.

And, contrary to the way book projects are traditionally carried out, I went to sell the completed book to a publisher – no book proposal, but, rather, a full manuscript. The publisher of The Shadow University was unwilling to take on the project, perhaps, I wondered, for fear of the U.S. Department of Justice? Other publishers I contacted likewise turned me away.

Enter my dear friend Dorothy Rabinowitz, the Pulitzer-Prize-winning columnist for The Wall Street Journal, who suggested that I send the manuscript to her friend Roger Kimball, the brilliant publisher at Encounter Books (who I see in the audience this evening, and who is on the Board of the Manhattan Institute).

Roger, who had seen some of his own friends get ensnared in the traps for the unwary strewn throughout the ocean of vague federal statutes and regulations, agreed to publish the book. Three Felonies’ has become somewhat of a handbook for the counter-revolution against tyranny. The book’s influence has been such that I recently acceded to Roger’s plea that I write a sequel that would focus on the proposed solutions. I’m nearly half done with the manuscript, and Conviction Machine is due out sometime next year.

In these two theaters of battle in which I find myself, reliable allies are highly valued. This is why the Manhattan Institute is so important: It recognizes the stakes, in terms of liberty and of civilization itself, in both the criminal justice arena and the education arena. I am proud, and buoyed, to have allies like MI. I know that FIRE likewise is grateful to have such a reliable cohort in the fight for restoration of liberty, fairness, and sanity on college campuses.

Together, and with all of the other groups across the political spectrum that see the reality of what is happening and are determined to do something about it, we will prevail.

Yik Yak—Latest Target of the Anti-Free-Speech Left

Last Wednesday, 72 left-wing groups, including the Feminist Majority Foundation, American Association of University Women, and Leadership Conference on Civil and Human Rights, asked federal civil-rights officials to crack down on anonymous politically-incorrect speech on campus, which they claim violates federal civil-rights laws such as Title IX. They claim they are concerned about “harassment” on anonymous social media applications like Yik Yak, as the Chronicle of Higher Education notes in the article “Women’s Groups Urge Colleges and Government to Rein in Yik Yak.”

Related: Divestors—No Free Speech for Opponents

But their October 21 letter to the Education Department’s Office for Civil Rights makes clear that their real goal is to restrict free speech, not just “harassment,” since the letter explicitly labels constitutionally-protected speech as “race-based harassment.” It seems their real goal is to silence dissent on campus by eliminating students’ ability to express their opinions anonymously. The ability to speak anonymously gives moderate and conservative students a chance to speak without vilified or punished by left-wing campus administrators or bullied by student government officials (who sometimes defund campus newspapers for having the temerity to print a moderate or conservative viewpoint about a racial or sexual issue.).

As their letter puts it, “Anonymous race-based harassment through Yik Yak is also pervasive on college campuses. At American University in Washington, DC, for example, Yakkers posted successive invidious comments targeting African-Americans, such as ‘Their entire culture just isn’t conducive to a life of success. It just isn’t. The outfits. The attitudes. The behavior.’”  Whether or not this sentiment is racist, it certainly is not “harassment.”  Indeed, even black newspaper columnists and entertainers regularly lament cultural impediments to success in the black community. Moreover, there is no “racism” exception to the First Amendment.  In 1993, a federal appeals court cited the First Amendment to overturn a fraternity’s discipline for a racist, sexist “ugly woman” skit, in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University.  And calling racist viewpoints “harassment” does not change this, because as another federal appeals court explained in DeJohn v. Temple University (2008), “there is no ‘harassment exception’” to free speech about racial and sexual issues on campus.

Related: Is Yale Using Title IX to Trump Free Speech?

Requiring colleges to punish what is perceived to be “race-based” speech would endanger even viewpoints that are mainstream positions in society at large, but are disapproved of by politically-correct college campus administrators. Under campus hate speech and “harassment” codes, students have been subjected to campus disciplinary proceedings, in violation of the First Amendment, merely for expressing commonplace opinions about sexual and racial issues, such as criticizing feminism or affirmative action, or discussing homosexuality or the role of race in the criminal justice system.

Wesleyan University in Connecticut provides a recent example of how even mainstream conservative viewpoints are targeted for suppression on campus, in a saga so extreme that it drew criticism from the generally liberal Washington Post columnist Catherine Rampell:

In September, sophomore Bryan Stascavage — a 30-year-old Iraq veteran and self-described “moderate conservative” — wrote a column for the Wesleyan Argus. In it, he criticized the Black Lives Matter movement — not the movement’s mission or motivations, but its tactics and messaging, particularly those of its more anti-cop fringe elements.

The essay was provocative, but it contained neither name-calling nor racial stereotypes. It was no more radical than the conservative commentary you might see on mainstream op-ed pages such as this one. That didn’t stop all hell from breaking loose.

Within 24 hours of publication, students were stealing and reportedly destroying newspapers around campus. In a school cafe, a student screamed at Stascavage through tears, declaring that he had “stripped all agency away from her, made her feel like not a human anymore,” Stascavage told me in a phone interview. Over the following days, he said, others muttered “racist” under their breath as he passed by.

The Argus’s editors published a groveling apology on the front page. They said they’d “failed the community” by publishing the op-ed without a counterpoint and said it “twist(ed) facts.” They promised to make the paper “a safe space for the student of color community.” This self-flagellation proved insufficient; students circulated a petition to defund the newspaper.

The Wesleyan student government has now voted to effectively cut the newspaper’s funding.

Related: A New Age of Campus Censorship

In their October 21 letter, the left-wing groups essentially ask the Education Department’s Office for Civil Rights to repeal the First Amendment as to internet speech and anonymous speech, complaining that colleges have cited “vague First Amendment concerns” in refusing to crack down on such speech.  (The Supreme Court ruled that anonymous speech is generally protected by the First Amendment in McIntyre v. Ohio Elections Commission (1995)).

As they note, the Office for Civil Rights has already pressured colleges to adopt what are effectively campus speech codes in its recent “Dear Colleague” letters to the nation’s school officials, which label certain kinds of speech as probative of racial or sexual harassment: “In its October 2010 Dear Colleague Letter, OCR clarified that prohibited harassment may take many forms, including  . . graphic and written statements, which may include use of cell phones or the Internet . . OCR should also make clear that the First Amendment does not prevent schools from taking action” to restrict such speech, whether it “occurs in-person or online.”

It asks OCR to force colleges to take actions such as investigating “all” complaints of “online harassment,” whether or not the speaker is “anonymous”; bringing “campus disciplinary proceedings against” such “individuals”; blocking or “geo-fencing of anonymous social media applications that are used to . . . harass students”; and “barring the use of campus wi-fi to view or post to these applications.” Thus, it seeks to ban entire applications from campus based on the speech of some of their users, and to keep students from even seeing what is posted on them, keeping them in the dark about their content.  (The Supreme Court has described such blanket bans as being as foolish and harmful as “burning the house to roast the pig,” in its 1997 decision striking down a ban on indecent internet speech.)

But there is no “internet” exception to free speech about racial or sexual issues (or a blanket “hostile environment” exception, for that matter). That’s why the Ninth Circuit Court of Appeals dismissed a lawsuit based on a “hostile environment” that it assumed was created by a white professor’s anti-immigration emails. In that decision, Rodriguez v. Maricopa Community College (2010), it relied on the First Amendment to quash a racial harassment suit against the professor for sending those emails, which a college’s Hispanic faculty claimed created a hostile work environment in violation of Title VII of the Civil Rights Act and 42 U.S.C 1983.

Some of the letter’s demands are probably too extreme to be endorsed by the Office for Civil Rights.  But in the past, it has sometimes shown a disregard for the First Amendment and limits on its statutory jurisdiction.  As I noted earlier in The Wall Street Journal, “the Education Department, where I used to work,” is

“pressuring colleges to adopt unconstitutional speech codes in the name of fighting sexual harassment. It has disregarded many court rulings in doing so.

“For example, the Education Department has wrongly ordered schools to regulate off-campus speech and conduct. That contributed to the harassment charges against Prof. Laura Kipnis, who was accused over a politically incorrect essay she wrote in the Chronicle of Higher Education and statements she made on Twitter. Court rulings like Roe v. Saint Louis University (2014) reject Title IX claims over off-campus conduct, but the Education Department ignores them. It also ignores court rulings like Klein v. Smith (1986) emphasizing that the First Amendment usually bars public schools from restricting off-campus speech. For example, the Education Department told schools to regulate comments ‘on the Internet’ in an October 2010 letter. In 2014, it demanded that Harvard regulate off-campus conduct more.”

The Office for Civil Rights should nevertheless keep in mind that it — and individual OCR officials — can be sued for enforcing the civil-rights laws in a way that violate the First Amendment. OCR’s demands under the civil-rights laws were once held to have violated the First Amendment in Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board (1978). A chapter of the Klan had sought to meet together during non-school hours in an empty classroom, the way other groups were permitted to do by the school district. But it was barred from doing so by the school district, acting under pressure from the Office for Civil Rights, which argued that its presence would be illegal racial discrimination. A federal appeals court ruled that the school district and OCR had violated the Klan’s free-speech rights, which could not be overridden by Title VI of the Civil Rights Act or OCR’s requirements.

Similarly, another federal appeals court ruled that individual federal civil-rights officials could be sued for restricting speech in White v. Lee (2000).  That ruling emphasized that speech can’t be punished just because it incites illegal discrimination. It also ruled that federal officials could be sued for threatening citizens with civil fines for speaking out against a minority housing project, even if the speech persuaded a city to delay a housing project that would house members of a protected minority group. That decision also indicated that the restrictions on speech found in workplace racial or sexual harassment rules cannot be applied to society generally under non-workplace discrimination laws.

Campus Censors—Here’s How to Fight Them

This article originally appeared on Minding the Campus April 21, 2013.

It’s no longer a matter of much debate that America’s college campuses are not the beacons of free and open discussion in a democratic society that they were intended to be. In its 14 years of existence, our organization, the Foundation for Individual Rights in Education (FIRE), has documented hundreds of cases of gross abuses of students’ and faculty members’ fundamental rights. More than sixty percent of America’s largest and most prestigious colleges have speech codes that are either unconstitutional (at public universities) or directly contradict promises of free speech (at private universities).

The two authors of this piece come from very different political and personal perspectives. One is a liberal and an atheist (Lukianoff), the other a conservative evangelical Christian (Shibley). We are also FIRE’s president and senior vice president, respectively. But our combined decades of work at FIRE have convinced us that the groupthink and the pressure to conform, be silent, or talk solely to those with whom you already agree that is fostered by the culture and rules of the modern campus is destructive to students, our educational system, and our society as a whole. One of us wrote a book about it.

So what can people who recognize the importance of free speech on campus do about it? There are a number of possible measures that might be taken. FIRE is already doing some of them; others would require new large-scale and ambitious initiatives. Some are cultural. Some are political or legal. None are the silver bullet that a lot of us might like, and some have tradeoffs that might make them less desirable. Let’s take a look at a few of them.

Feds Can Mandate Protections

Margaret Hagen, a professor at Boston University, recently proposed in National Review that Congress should use the power of the purse to force campuses to respect free speech. This would be a statutory effort that would tie the receipt of government funding to enacting policies and practices that respect free speech, much as colleges that receive government funding must provide access to military recruiters. Given our college funding system, this would apply to nearly every college in America, public or private, since “federal funding” includes not just direct subsidies (received mostly by state schools) but also research grants as well as student funds like Pell grants and Stafford loans. Virtually every college in the U.S. gets federal funding from at least one of these sources—indeed, FIRE knows of only three American colleges that don’t: Hillsdale College, Grove City College, and the College of the Ozarks. There are probably more, but not many.

The advantage of this plan is that with the stroke of a pen, Congress and the President could make every college in America sit up and take notice. Lawyers would be hired to ensure compliance and rewrite speech-restrictive policies that suddenly look a lot more expensive. Students would know that no matter where they go to school, they would be taking their rights with them. Vague genuflections towards free speech would suddenly have real meaning. A greater diversity of views expressed on campus would be almost guaranteed.

But there are philosophical problems with this approach. First, it would undoubtedly represent further government intervention in college administration. For those who believe that less government is better, this might be a hard sell. The counterargument to this is that colleges who did not want to be “burdened” with free speech would remain free to give up claims to government funding. While this is true in principle, and is obviously possible, there is a reason why so few colleges attempt to survive without any federally backed loans or support.

Second, this type of legislation could lead to unjustified complacency about rights on college campuses. After all, public colleges are already required to follow the Constitution and yet most don’t. Putting federal funding at risk would certainly give them greater incentive to do so, and give private colleges actual incentive to do so, but enforcement would rely on federal bureaucrats being willing to actually cut funding to schools that fail to comply. This might be politically impossible at big schools like Ohio State or prestigious schools like Harvard. Colleges are likely to know this and may be willing to take that gamble. Colleges are in a similar situation with regard to compliance with the Federal Educational Rights and Privacy Act, or FERPA (a deeply flawed law, but that is for another article). Noncompliance is unlawful and can be punished through the loss of federal funds, but this has literally never happened in the 39 years since its enactment, despite many abuses.

Third, religious schools or explicitly ideological schools would lose the ability they now have to regulate expression in keeping with their missions. FIRE recognizes the right of private schools to put other values above free speech as long as they are transparent about the rules before students enroll. Few actually do—out of the more than 400 schools FIRE rates, only nine explicitly place other values above free speech, and two of them are military academies. But a free, pluralistic society should allow the ability to establish and join private organizations that have their own set of values that may not agree with the mainstream. Imposing First Amendment standards on all institutions via legislation may be the quickest of all fixes, but it comes with some significant drawbacks.

No Harassment by Harassment Rules

Since the 1980s, the most common form of campus speech codes has been wildly overbroad or vague harassment codes. Poorly written or purposely broad harassment policies can silence huge swaths of protected speech. For example, Auburn University at Montgomery bans “jokes” about protected characteristics, as well as “making judgments,” managing to ban both Chris Rock and Sandra Day O’Connor from campus with a single policy.

Speaking of O’Connor, the Supreme Court has actually provided the solution to this problem, if only schools would listen. It comes from Justice O’Connor’s majority decision in Davis v. Monroe County Board of Education (1999), in which the Supreme Court set out a standard for peer-on-peer harassment in the educational setting that protects free speech while preventing real discriminatory harassment. Under the Davis standard, behavior becomes punishable when it is (1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected class, such as race, (4) directed at an individual, and (5) “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

The Davis standard is a definition that is serious and that correctly confines harassment to seriously discriminatory patterns of behavior. Such a specific definition is nothing like the countless campus codes that prohibit “inappropriate,” “demeaning,” or merely “offensive” speech. Adopting Davis would send a strong message that “harassment” can no longer be treated as code for a student’s or administrator’s supposed “right not to be offended.”

Colleges could adopt the Davis standard on their own, or the standard could be written into federal or state legislation. Since all schools receiving federal funding are already bound by Titles VI and IX to have rules against racial and sexual harassment, adding this standard to law would not result in further federal entanglement. Indeed, it would add much needed clarity to federal requirements that confuse nearly everyone involved. It is crucial, however, that the law state that the definition of harassment should be understood as “no more and no less than” the Davis standard, and that the Davis standard definition be the only acceptable definition of harassment in the educational context. Without such language, campuses would simply go back to their current practice of having an arguably constitutional definition of harassment in one part of their code coupled with comically unconstitutional definitions of harassment elsewhere.

The Power of Litigation

Public colleges and universities that maintain unconstitutional speech codes are, of course, breaking the law. Yet at least 61.6% of the public colleges rated by FIRE have speech codes that we deem to be blatantly unconstitutional. FIRE’s Speech Code Litigation Project helps students file lawsuits against such unconstitutional speech codes, usually at the rate of about one per year. The project has a 100% success rate, aided by the “target-rich” environment and our expertise in constitutional law. FIRE has also repeatedly provided college administrators with “actual notice” about their unlawful codes through massive certified mailings, making liability for maintaining those codes easier to establish.

Our efforts to highlight speech codes with our annual Spotlight reports and targeted litigation have helped. Five years ago, 75% of schools had speech codes that violate First Amendment principles. This year, it was only 62%. We’ve spent 14 years working to roll back speech codes while avoiding truly widespread litigation. Yet with more resources targeted towards litigation, there’s no doubt that this number could be driven lower as schools realize the risks of maintaining speech codes that are frankly indefensible in a court of law.

Campus speech codes and unclear federal policies currently give campus administrators an excuse to overreact to speech. Indeed, university attorneys have some basis for believing that it may be safer, from a liability standpoint, to overreact. This kind of legal ambiguity—which can leave administrators wondering if they can be sued for not violating the Constitution—sends the problem of politically correct administrators into overdrive. Litigation on a large scale may be the only way to rebalance this perverse incentive structure by creating a real and substantial risk to colleges that currently find it safer and easier to censor first and ask questions later.

Act for Disclosure Legislation

Knowledge is power, which makes disclosure rules a popular form of providing transparency in many sectors of our economy. Lawyers, stockbrokers, accountants, and many others are used to disclosing pertinent information in the course of business. But there’s no rule that says universities must disclose whether they protect students’ fundamental rights, despite the fact that they are treated like autonomous city-states with little oversight or accountability in this area. Congress could add a provision to federal law that would require public colleges to annually certify that they have reviewed their policies and that they comply with the First Amendment. The legislation would also require private institutions to declare whether they offer their students free speech rights equivalent to those enjoyed by students on public campuses. These submissions would be posted in a searchable online database, so the information would be publicly available.

While the law would not have to involve penalizing universities for not protecting speech (although public universities would court disastrous lawsuits if they admitted they didn’t follow the First Amendment), they would have to carefully consider their answers. Even private universities that aren’t bound by the Constitution would likely find it difficult to tell students and faculty members that they don’t have anything like full First Amendment rights, since the vast majority of institutions do pay at least lip service to free speech. Promising free speech in your glossy materials while burying the bad news under hundreds of pages of bureaucrat-speak is one thing. Telling the feds and public “no, we don’t care about First Amendment principles” is entirely another.

Carrots for Good Colleges

FIRE has ensured that administrators who refuse to address speech problems on their campuses face possible legal action, expenses, the loss of qualified immunity, and negative publicity. However, simple negative reinforcement is not enough. Colleges must also have “carrots”—positive incentives for reform—to go along with the metaphorical sticks. FIRE works hard to provide positive publicity for those schools that do cooperate and reform their policies. Schools that earn a “green light” rating from FIRE, such as recent examples Eastern Kentucky University, Ole Miss, and Mississippi State, receive public praise, a reward that encourages other schools to follow suit. FIRE has also begun publishing an annual list of the best schools for freedom of speech in The Huffington Post.

Perhaps most valuable, though, is FIRE’s willingness to work with universities to avoid the circumstances that lead to bad publicity. FIRE attends multiple college administrator conferences every year to let them know what the law says about free speech and to make sure they know that FIRE is ready to collaborate with colleges in crafting policies that meet their needs without compromising essential freedoms. Rather than pay tens of thousands of dollars to “risk management” consultants who are more concerned with avoiding liability than they are with the Constitution, colleges can work with FIRE—for free, of course—to devise policies that have the greatest protection possible: a basis in reason and principle.

There is a huge opportunity here for other organizations to help, as well. The higher ed sector is vast, and schools are hungry for ways to distinguish themselves. Those who care about liberty on campus—including other nonprofits, journalists, politicians, and private citizens—should not stint on their praise for institutions that do the right thing, and should award carrots of their own.

Change  the Culture

FIRE and our allies have been fighting the culture of censorship on campus for decades—and we win our battles over and over again. But progress is slow and resistance is high. So it’s essential to talk about ways to try to spark a meaningful cultural transformation that will push back against the tide of illiberal behavior on campus. In order to truly promote the right to free speech and dissent on campus, we must act on more than a case-by-case basis and look for systematic solutions.

First, K-12 civics education fails to provide students the foundation in the First Amendment and the overall principles of a free society that they need to understand their rights once they get to college. While students know that America protects freedom of speech, and they care about that, most can’t articulate the underlying principles or explain why freedom of speech, dissent, thought experimentation, and devil’s advocacy are important. And colleges are hardly helping students learn these valuable lessons. FIRE and others have been working on this problem, and we are increasingly aiming at reaching high school students before they arrive on campus and providing them with tools they need to defend their liberties and advocate for change. For instance, FIRE’s “Freedom in Academia” high school essay contest has elicited over 13,000 submissions since it first began and continues to grow. This year, we’re also partnering with the Bill of Rights Institute to develop a curriculum package for high school seniors with a FIRE video and a step-by-step lesson plan.

Another small-scale idea that could have a big impact on campus would be a “boot camp” program for American high schoolers. These boot camps would be small-group events for college-bound high school students interested in learning more about their rights and the democratic ideal of free expression. Beginning in large cities such as New York and Philadelphia, advocates could host sessions focusing on the challenges on campus and how students can fight back against censorship and attempts to clamp down on free and independent thought. Armed with the knowledge and tools necessary not only to advocate for the First Amendment, but to understand the importance of meaty, meaningful debate, these students will arrive on campus ready to defend their rights and the rights of their fellow students. While the K-12 sector is so large that it dwarfs even higher ed, not every student must be fully educated on the First Amendment. Even a single student with knowledge of free speech and the power of dissent has the potential to make a difference on campus, since in FIRE’s experience, it often takes only one student who won’t be silenced to shake up an otherwise complacent university.

Alumni also offer a powerful but difficult-to-mobilize constituency. Over the last decade, we’ve seen that legal pressure and public attention can have a huge impact on campus. That pressure is all the more difficult to resist when it comes from alumni. After all, few colleges or universities will risk losing millions in alumni support that they could retain by reforming their policies or reversing rights violations. Money talks, and if we can educate alumni on just how serious censorship is at their alma mater, their voices will be heard loud and clear by administrators.

Finally, and most broadly, we must seek ways to overcome the “echo chamber” effect that is prevalent in academia and increasingly in our society at large. This is not something that Congress or lawyers can fix: the change must necessarily be cultural. But if a way can be found to promote the idea that truly educated people seek out discussions with smart people with whom they disagree, it could go a long way to overcoming groupthink both on and off campus.

Too often, people succumb to the temptation to dismiss their political and cultural opponents as ignorant or stupid. And there are many ignorant and/or stupid people out there in all walks of life. If you’re looking for one to take on in order to make yourself feel better about your beliefs, you’ll find one. But nearly every idea in American discourse that is not utterly fringe has hundreds or thousands of advocates who are perfectly capable of making solid cases for their beliefs. The fact is, if you can’t find a person who is capable of making rational arguments on behalf of the Tea Party or Occupy Wall Street, you didn’t really try, especially in the age of the Internet.

But you might not get this impression on a college campus. As Penn professor Diana C. Mutz discussed in her 2006 book Hearing the Other Side, the more education you have, the less likely you are to have exposure to people with different points of view. This is asking for (and delivering) massive problems of “confirmation bias” that spill over into society at large. One might hope that colleges would be aware of this problem and would be working overtime to correct it; it is, after all, their job to ensure their students are being trained to use the tools of reason and critical thinking. But there’s little indication that this is the case on the scale necessary to make a difference.

That’s why promoting a cultural norm that advocates seeking out those people and testing one’s beliefs would advance dialogue more than we can now imagine is possible. Debate series like Intelligence Squared, websites like Bloggingheads.tv, and others are doing great work towards this goal off campus, and similar programs exist on campus as well. But this shouldn’t be just an optional program on campuses—it should be a core goal of the university. Failing that, teaching students that debate is actually fun as opposed to fraught with the risk of offense, that seeking out opposing viewpoints is what smart people do, that too much agreement may not mean that you are right but that you are caught in a self-affirming clique, and that thought experimentation leads to better ideas could do a lot to help students poke their heads out of the echo chambers campus censorship helps create.

“Safety” is a much abused term on campus, often invoked lightly to refer to a generalized right for students to feel emotionally unchallenged. That kind of “safety” is a more appropriate goal for K-8 education, and even there it has likely already been taken too far—eighth graders understand a whole lot about disagreement. But there is a kind of safety for which advocates of reform in higher education must press: campuses need to be places where it is safe to disagree at a fundamental level, safe to question and even satirize the university’s sacred cows, safe to question the conventional wisdom, and safe even to be wrong, to provoke, and (gasp) to joke. While there has been much talk in the last decade that higher education is moving on to some next level, little progress can be made within the existing models as long as students and faculty can and do still get in trouble for merely stating opinions that administrators dislike.

Princeton Takes a Stand on Free Speech

Our university campuses are now islands of oppression in a sea of freedom.”—Abigail Thernstrom, 1990

So say many critics of our colleges, and, alas, in many cases correctly.  Here are the hallmarks of today’s college campus:

  • The implementation of hate speech codes
  • The stultifying strictures of political correctness
  • The greatly expanded notions of verbal harassment
  • The absence of right-of-center viewpoints among the faculty and high-level administrators
  • The disruption of talks given  by those on the  wrong side of issues like gay marriage and affirmative action
  • The denial of the most elementary rights of due process to students accused of sexual misconduct
  • The overt indoctrination of mandatory attendance at diversity orientation and sexual harassment assemblies

Amidst all such developments colleges and universities today are often highly politicized arenas in which students are required to check their free speech rights at the college gates

While civil libertarians and defenders of our First Amendment freedoms sometimes exaggerate the harms that they see, they are not wrong when they single out America’s colleges and universities for special rebuke.  It is largely because of the egregious situation they describe that organizations like FIRE and the Minding the Campus website are kept in business — doing yeoman’s work to provide a countervailing force to the stultifying atmosphere and outright repression of free speech found on so many of our campuses.

What Universities Could Be

The situation is particularly lamentable when one considers the high hopes once raised for the social role of universities in a democratic society.  Karl Mannheim, the Hungarian-born sociologist of a century ago, believed that modern universities should become places where broad-minded intellectuals holding diverse views on the many contentious social, political, and religious issues of the day.  The goal was to come together to mutually enrich and expand the understanding of each other’s alternative perspective and arrive at a more comprehensive truth about the nature of the issues at hand. Like John Stuart Mill, Mannheim believed that controversial public policy issues are usually multi-faceted and that the human mind naturally tends toward one-sidedness.

Mill’s On Liberty stated the basic idea with its author’s characteristic clarity: “Truth, in the practical concerns of life,” Mill wrote, “is so much a question of the reconciling and combining of opposites, that very few have minds sufficiently capacious and impartial to make the adjustment with an approach to correctness.”  In politics, morality, religion and other areas outside of mathematics and natural science, Mill believed, “popular opinions … are often true, but seldom or never the whole truth.  They are a part of the truth; sometimes a greater, sometimes a smaller part, but exaggerated, distorted, and disjointed from the truths by which they ought to be accompanied and limited.  Heretical opinions …are generally some of these suppressed and neglected truths.”  Mill continued, “Such being the partial character of prevailing opinions, even when resting on a true foundation, every opinion, which embodies somewhat of the portion of truth which the common opinion omits ought to be considered precious, with whatever amount of error and confusion that truth may be blended.”

In England during Mill’s time, rather than finding its home in universities, vibrant intellectual discourse was typically carried on in highbrow journals and learned societies (think of the Westminster Review and the Royal Society). Ideas were promoted mostly by freewheeling thinkers and virtuoso intellectuals (Bentham, Ricardo, Darwin, James Mill, etc.) rather than Oxford or Cambridge dons.  Some today would see parallels to the contemporary American scene, with much of the best discussion on issues of politics, religion, and morality taking place outside the universities in think tanks such as Brookings, Heritage, Cato, AEI, the Manhattan Institute and the like.  But however important institutions outside our universities may be, there is really no substitute for the potential that universities today can offer to achieve the high purpose that thinkers like Mannheim have ascribed to them,

Clarity and Force

In my time at Princeton since the late 1980s, few developments have given me as much reason to rejoice as what happened on April 6th of this year at a general meeting of the faculty.  Presided over by the university’s president Christopher Eisgruber, the faculty passed, with little or no opposition, a magnificent statement on the university’s commitment to freedom of speech.  The statement is a model of both clarity and force, and was patterned after a similar statement adopted by the University of Chicago last year.  Here is the Princeton statement in full:

Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn.  Except insofar as limitations on that freedom are necessary to the functioning of the University, the University fully respects and supports the freedom of all members of the University community “to discuss any problem that presents itself.

Of course, the ideas of different members of the University community will often and quite naturally conflict. But it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.  Although the University greatly values civility, and although all members of the University community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish.  The University may restrict expression that violates the law that falsely defames a specific individual that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of the University.  In addition, the University may reasonably regulate time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of the University.  But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with the University’s commitment to a completely free and open discussion of ideas.

In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the University community, not for the University as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose.  Indeed, fostering the ability of members of the University community to engage in such debate and deliberation in an effective and responsible manner is an essential part of the University’s educational mission.

As a corollary to the University’s commitment to protect and promote free expression, members of the University community must also act in conformity with the principle of free expression.  Although members of the University community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe.  To this end, the University has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

Princeton’s version of the Chicago resolution was proposed to the faculty by Sergiu Klainerman, a professor in the mathematics department. “Although academic freedom is one of the university’s most basic principles,” the Klainerman letter began, “its meaning and significance often tend to fade over time.” The letter continued:

Every so often, then, it becomes crucial to reaffirm the importance of freedom of expression on our campus.  It is with this thought in mind that the University of Chicago recently published a report heartily reasserting its commitment to free, robust, and uninhibited debate and deliberation among all members of the university community. Several of us representing various scholarly disciplines at Princeton are joining together to propose that our university endorse the principles of the Chicago report.

The signers of the letter were disproportionately drawn from the STEM fields (particularly mathematics, physics, and computer science), but there were also among the endorsers many from social science and humanities departments.  I emailed Klainerman after the vote and asked why he sent the letter and whether he saw any specific threats to free expression on the campus. Instead of singling out a specific group, he said he “would rather point to a broad collective forgetfulness about the meaning of free speech on colleges and universities.

The editorial board of the Daily Princetonian hailed the new statement on free speech and urged the university to do more:

We suggest the University go one-step further and wholly replace the existing free speech code in the guidebook with the new statement.

The current code bears a “red light” designation from the Foundation for Individual Rights in Education, due to policies that “both clearly and substantially restrict freedom of speech.” The present language allows for University sanctions against an individual whose verbal behavior “demeans” or “intimidates” another.

Here, as in many behavior codes, Princeton’s language of sensitivity dilutes the insistence on free speech. The university may well follow the editorial board’s suggestion, but for now, the faculty letter is an impressive win for free speech.

The faculty declaration became significant almost immediately after its passage as a controversy emerged in the second week of April over a skit performed by a campus group calling itself Urban Congo that was widely perceived as demeaning to Africa and Africans.  There were calls on social media to have the group officially reprimanded or disband, but there was also considerable support for a criticize-but-don’t-censor position.

One columnist for the Prince, who sympathized for those offended by the Urban Congo skit, nevertheless offered some practical advice about what to do about the situation that did not involve censorship.  “Free speech doesn’t mean that students harmed by others have no recourse except for a thicker skin,” the student columnist wrote. “If Urban Congo offended you, tell them why; tell other students why they’re wrong; ask your classmates to boycott or condemn the show.  Use your free speech against theirs.  Change the attitudes of your classmates; don’t police their behavior.”

Let’s hope attitudes like this prevail on other college campuses and that declarations like those of the Chicago and Princeton faculty become the new reigning norm.

Why Do Dems and Liberals Tolerate Speech Codes?

New York magazine’s Jon Chait ran one of his periodic columns arguing that congressional Republicans were unlikely ever to have cooperated with President Obama, regardless of Obama’s policies. Chait has argued, persuasively, that given the current political climate and the institutional tools available to the minority to obstruct without paying a political price, only a naïf would have expected the congressional GOP to have worked in a collegial fashion with the President.

Continue reading Why Do Dems and Liberals Tolerate Speech Codes?

Why Free Speech Advocates Are Angry

Sometimes people who don’t work in academia wonder why colleges are often the object of debates over free speech. Sure, some observers know that campuses are liberal enclaves, and they regard professors and administrators as easily intimidated by identity politics. But most people remember their college days as pretty much apolitical, and they continue to put the ideological elements in a small box.

That’s why it’s important to go back to the sources and hold them up to public scrutiny. Take campus speech codes. They have a bad name in public life, but they stand firm in student handbooks and campus policies in black and white. Here is a list of some of them, all taken from the list assembled by Foundation for Individual Rights in Education (www.thefire.org). (Some of them may have been altered by now, but the fact that they ever existed is sufficient cause for response.)

At Ohio University we have this definition of harassment: “Nonsexual verbal or physical conduct that denigrates or shows hostility toward another because of the person’s gender can be the basis for a hostile, offensive, or intimidating environment claim. Gender based conduct can take the form of abusive written or graphic material; epithets; sexist slurs; negative stereotyping; jokes; or threatening, intimidating, or hostile acts.”

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Knocking Out Speech Codes, Keeping Everything Else?

Last weekend’s National Association of Scholars conference saw an encouraging commitment against speech codes by Cary Nelson, President of the American Association of University Professors. Prompted by questions from Anne Neal of the American Council of Trustees and Alumni and from a reporter, Nelson stated “I want to knock out speech codes.” The AAUP is publicly opposed to speech codes, dating from a 1994 statement, yet it’s difficult to find any public statements on the topic, or any concrete cases of their objection to the suppression of free speech since. Nelson’s personal opposition to speech codes is well-documented; he is a public supporter of the Foundation for Individual Rights in Education and praised their work last weekend. Hopefully this will prove one area of fruitful collaboration, for, as Nelson’s other remarks at the conference made clear, there is extraordinarily little about which he and critics of the professoriate can agree.
Nelson appeared in a debate with Peter Wood, President of the National Association of Scholars, on “The Meaning of Academic Freedom.” While rejecting speech codes and acknowledging the political risks of faculty hiring, there was no mistaking him for a sympathetic party. He derided David Horowitz’s “scorched earth slander” and denounced the American Association of Trustees and Alumni’s “How Many Ward Churchills” report as “crude yellow journalism.” He likened dealing with the NAS to dealing with “a claque of Iranian mullahs.” Not least of all, he referred to their attention to professorial misconduct as an “Orwellian wild goose chase.” And, if you can imagine, it was almost worse to hear the practical details of his views.
The debate showcased the sharp disagreements in the AAUP and NAS conceptions of academic freedom that are no doubt familiar to any reader of the AAUP’s “Freedom in the Classroom” statement, or of the subsequent NAS critique. The AAUP doesn’t regard professorial conduct as epidemic and insists that professional and university structures are sufficient to handle any real problems. The NAS finds the AAUP’s almost-rote invocation of disciplinary consensus-as-truth inadequate and its disinterest in professorial proselytizing inadequate. We all know this. It was far more interesting to hear some common arguments actively contested.

Continue reading Knocking Out Speech Codes, Keeping Everything Else?