Free Speech on the Quad

It’s slow going, but the campaign to highlight censorship on campus may be getting somewhere. That’s the message of a new report from the Foundation for Individual Rights in Education (Fire), which tracks the speech bullies in academia.

Fire’s 10th annual report surveyed speech policies at 345 four-year public colleges and 104 private schools. The good news is that the share of colleges with “red-light” speech codes that substantially bar constitutionally protected speech has declined to 39.6%, a nearly 10% drop in the last year and the lowest share since 2008. Over the last nine years the number of institutions that don’t seriously threaten speech has tripled to 27. Several colleges including the University of Wisconsin have adopted policies that affirm (at least in theory) their commitment to free speech.

House Judiciary Chairman Bob Goodlatte deserves some credit for this free-speech breakthrough. Last August he sent letters to the presidents of public schools with red-light codes inquiring about their unconstitutional policies. While public universities are bound by the First Amendment, private colleges can legally restrict speech, ironically thanks to their First Amendment right to freedom of association. Nearly twice as many private universities (58.7%) maintain restrictive speech codes as public colleges (33.9%).

As Fire notes, “although acceptance of federal funding does confer some obligations upon private colleges (such as compliance with federal anti-discrimination laws), compliance with the First Amendment is not one of them.” Private schools can therefore discriminate against faculty and students based on their political expression, but not gender or race.

The Obama Administration has used Title IX, which bans sexual discrimination, to threaten schools over their handling of sexual misconduct and assault claims. And its expansive definition of sexual harassment, which encompasses all “unwelcome” conduct of a sexual nature, infringes on speech. Colleges have adopted the Education Department’s “guidance” in responding to sexual harassment claims to avoid sanctions. In June 2015 a tenured Louisiana State University professor was fired for alleged sexual harassment because she used off-color humor. Fire is litigating the case.

Even as some colleges drop speech codes to avoid legal challenges, many have established “bias” reporting systems that solicit complaints about offensive speech. As Fire explains, these systems encourage “students to report on one another—and on faculty members—whenever they subjectively perceive that someone’s speech or expression is biased.”

About 40% of schools that Fire surveyed had a bias reporting team tasked with investigating verbal slights. Students at Rutgers can be investigated if they insult someone’s heredity or blood type (is an AB a positive or negative trait?). At the University of Kentucky, disparaging a smoker can trigger an investigation.

A “case manager” at the University of Oregon intervened this year after a student complained that the student newspaper “gave less press coverage to trans students and students of color.” Memo to Oregon’s duck-and-cover administrators: The First Amendment includes freedom of the press, which means not dictating coverage. These bias interventions have a chilling effect on speech but are more difficult to challenge in court than codified restrictions.

All colleges should follow the example of the University of Chicago, which this year sent all freshmen a bracing warning that academic freedom sometimes means hearing things they might not like or agree with. The tender hearts seem to have survived. Thanks to Fire for holding others to the same principle.

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