December 15, 2008

Free-Speech Group Says Most Colleges Violate the First Amendment

Nearly three-quarters of colleges and universities maintain unconstitutional speech codes, according to a report released today by the Foundation for Individual Rights in Education. The group, known as FIRE, gave 270 of 364 institutions a “red light” for having “at least one policy that both clearly and substantially restricts freedom of speech.” In last year’s report, FIRE gave 259 of 346 colleges and universities that designation: 74.9 percent, compared with 74.2 percent this year.

In its news release announcing the report, the group quotes from a few universities’ antiharassment policies and lists recent targets of its Speech Code Litigation Project. The group has recently represented students in battles against the State University of New York at Binghamton, Temple University, Valdosta State University, and the University of Delaware. —Sara Lipka

Comments

1. While I am sure there are plenty of out dated speech codes in light of judicial decisions over the past ten years, FIRE is the last organization that I would listen to on any legal matter – it is the most political organization I have ever come across.

   — Kyle David    Dec 15, 02:35 PM    #

2. Not at all surprising, though highly depressing. For some reason, colleges and universities persist in believing that they may dispense with the constitutional rights of people aged between 18 and 22 in ways that—if they stopped to think about it—would be unimaginable if the persons concerned were aged between, say, 45 and 50.

   As regards Mr David’s comment above, if by “political” he means “devoted to the speech rights only of those students and faculty whose partisan politics the organisation shares,” he is, of course, incorrect.

   — Gustave    Dec 15, 02:40 PM    #

3. Gustave: Please provide documentable proof for your, of course, conclusion regarding the political affiliation of FIRE and their partisan (or non-partisan) politics. Of course, your notation something is or is not true does not make it so. Legitimate sources, please, not a simple re-hash of the FIRE web site.

   — Jeff Ehney    Dec 15, 03:33 PM    #

4. FIRE’s report is a fraud.

   Here is the page on Montclair State University (NJ), where I work:

   http://www.thefire.org/index.php/codes/1005

   Neither FIRE itself nor any organization I have ever heard of would permit the kind of behavior that the MSU web pages here warn against.

   For FIRE, “freedom of speech” only exists when one can freely insult, harass, intimidate, and obstruct others.

   In short, FIRE’s “study” is dishonest in the extreme. To call these paragraphs “speech codes” can only be intended to give a deliberately misleading impression — that is, to lie.

   — Grover Furr    Dec 15, 03:40 PM    #

5. This push represents a perennial battle where some students believe that there is intellectual merit to using racial epithets on campus—or to propose a corollary argument that students of color are genetically inferior. Perhaps there really is merit to be mined in such comments—when it comes to residual resistence to diversity, conjecture would be replaced with empirical evidence.

   — AMK    Dec 15, 03:40 PM    #

6. Kyle David, Can you give me an example of why this is the “most political organization” you have ever come across? I have not had any dealings with the group, only what I have read in print. What I have read did not appear to be political in nature. I do believe it was a matter of free speech. Is it the content of the speech being defended that you are characterizing as political?

   — NoDoc    Dec 15, 03:43 PM    #

7. Any discussion of these matters has to premise some distinctions. Public colleges and universities in the U.S. are legally bound to respect free-speech rights. Private colleges and universities are not. (For example, colleges with religious commitments do not legally have to tolerate expressions contrary to those commitments.)

   In the last analysis, free speech is the legal right to say virtually anything you have on your mind. It does not coincide with, serve as a subset of, or constitute the genus of academic freedom. Academic freedom is necessary for students, teachers, and researchers who are engaged in methodical (and usually disciplinary) investigations.

   Thus a public university under free speech must allow the expression of unpopular positions and mere opinions. But under academic freedom there is no right to utter, and no obligation to tolerate, opinions that are poorly informed.

   — dionysos    Dec 15, 03:52 PM    #

8. Gustave, I have studied FIRE since its beginnings, please do not tell me how the organization runs, I already know – it is political organization at best and it is only interested in its interpretation of the constitution. It is a sham at best.

   — Kyle David    Dec 15, 03:59 PM    #

9. So, Kyle, your answer is essentially “Trust me, what I say is true?” You decline to give any examples? I have also followed quite a bit of what FIRE has worked on, and it seems to me that they defend both left- and right-leaning speech. I have the perception that they work a bit more on one side than the other, but that doesn’t make me view them as “political” or suspect or a “sham.”

   — swish    Dec 15, 04:17 PM    #

10. The freedoms granted by the Consitution of the United States of America are not guaranteed. They must be fought for, secured, utilized and defended by each succeding generation. Oppressed college students, recognizing their condition, must do as we did in the 60s and “Take the Power Back.” Hopefully they will do a better job than we did.

    — Gera Rosy    Dec 15, 04:27 PM    #

11. Thank you for your deep, sophisticated analysis, Kyle David. Now I finally believe.

    — a reader    Dec 15, 04:36 PM    #

12. I find the simple breakdown into Red, Yellow and Green to really gloss over what happens at universities. And FIRE’s website does a very poor job elaborating what leads to these ratings. Furthermore, the process for deciding or changing these ratings seems very opaque.
    I was at at university when FIRE changed its rating from Yellow to Red without any actual changes in the university’s policy. No explanation for the change, just a sudden flip-flop, I guess.
    FIRE would do a much better job if they could do complete writeups and explanations about these ratings, showing schools what they can do to improve themselves, rather than FIRE just getting angry and having gut reactions against them.

    — Evan    Dec 15, 04:36 PM    #

13. Why is it that a private post-secondary institution that receives federal funds does not have to protect free speech?

    — kgotthardt    Dec 15, 04:37 PM    #

14. Kyle,

    I am sorry but I must agree with Swish.

    Dionysos,

    I believe your definition of Academic Freedom is flawed. Academic Freedom specifically allows unpopular opinions to be expressed and discussed without fear of repercussion. That is, unless you are the arbiter of those opinions. Isn’t that the point of academic freedom? I’ll bet your president would be upset if you made unfavorable remarks about his/her leadership style in the classroom as an example of poor leadership styles and would consider your opinion as being poorly informed.

    — NoDoc    Dec 15, 04:43 PM    #

15. Oh come on. Everybody knows FIRE is the propanganda arm supporting David Horowitz’s paranoid delusions about how conservatives are persecuted in higher education. There is no such thing as “PC.” If you hold an opinion that people around you don’t agree with, and you feel afraid to speak up, that used to be called cowardice. But having rules on campus about not calling people ugly names is something else entirely than “free speech” violations. This whole “controversey” is manufactured. David Horowitz is just using young people to feed his egomania.

    — Andrea    Dec 15, 05:00 PM    #

16. G. Furr (#4)

    “For FIRE, “freedom of speech” only exists when one can freely insult, harass, intimidate, and obstruct others. “

    It may come as a terrible shock to you, but freedom of speech, under well-established consensus concerning the First Amendmen, does, indeed, encompass the right to insult, harass, intimidate, and obstruct others, provided that no physical coercion or threat of violence is involved. That’s what demonstrations against, say, military recruiters in connection with the ban on gays enlisting or serving are akk about. There is no prior necessity to respect anyone or his ideas in order to say critical things about him. Handing out strongly worded leaflets concerning someone’s activities may well insult, harass, intimidate and obstruct him in a variety of ways. That’s the idea, after all. You can parade in front of an abortion clinic or a Mormon Church, as you choose, reviling those institutions in the strongest language while urging the public to avoid them. But, within broad and well-understood lilmits, it is perfectly licit to do all this. (Likewise, to address the complaint of AMK (5), it is licit to use racial epithets—funny how these go unpunished when employed by black militants—and unquestionably licit to express the opinion that some races are intellectualy inferior to others for genetic reasons.)

    You may be nauseated by such speech, but then your duty is to out-argue the people who deploy it, not to call on the campus thought-police to shut them up. But arguing requires work and thought, whereas repression merely requires power, licit or otherwise.

    AS to FIRE—I, too have followed them for years, noting that they always scrupulously document their cases. I suspect that the spleen exhibited here in the denunciation of FIRE results from the fact that they forthrightly champion the classical notion of free speech that was once, not long ago, the consensus view among academics but which is now a source of discomfort to those who have succumbed to the lure of lazy self-righteousness in the name of “politics”.

    — Fossil    Dec 15, 05:22 PM    #

17. “Fossil” is completely wrong.

    No institution of any kind — FIRE itself included — can function if people have the “freedom of speech” to stand up at any time and scream insults, obscenties, or just disrupt whatever work is going on.

    FIRE itself would never tolerate from its employees the kind of behavior it calls for colleges to permit!

    Here’s an example of a statement from Montclair State U. that FIRE calls a “speech code”:

    “Disruptive conduct includes, but is not limited to: […] threatening or obscene language or behavior in public places.”

    So Montclair State, and all colleges and universities, are to permit “threatening” and “obscene” “language” and ‘behavior” “in public places” on the university campus?

    Nonsense! This is a fraud, a lie. No university can tolerate such activity without leaving itself open to lawsuits and letting psychopaths dominate public forums.

    The same can be said for ALL the other examples of so-called “speech codes”. They require decent behavior, not the suppression of dissent.

    “Conservatives” are not in the slightest interested in defending “freedom of speech”, and neither is FIRE.

    — Grover Furr    Dec 15, 05:36 PM    #

18. Mr Ehney:-

    Always glad to provide chapter and verse (Mr David, on the other hand, should avert his eyes now, in conformity with his expressed desire not to be told anything about FIRE that he doesn’t already know).

    This year alone, FIRE has championed the cases of:

    * A social work student at SUNY Binghamton who contends that one of his professors has failed to live up to the requirements of social justice. (To be sure, I have no inside information as to this young man’s politics, but they seem to be several shades to the left of Ralph Nader’s.)

    * A student at Valdosta State University in Georgia who protested the environmentally unfriendly practices of his institution’s administration. (Again, it seems unlikely that the person concerned pulls the lever marked “R” at election time.)

    * A Brandeis University professor, who in his classroom criticised racism in terms a single student—and the university—considered excessively robust. The professor is a stalwart of the Massachusetts ACLU, which has also taken up his case.

    In the past, FIRE has also protested the cases of professors dismissed for (i) discussing the Iraq war in class [Elizabeth Ito]; (ii) supporting Palestinian terrorism [Sami Al-Arian—who was subsequently convicted of this charge, but fired without even a semblance of due process]; and (iii) criticising an authoritarian college president [the Chronicle’s own Carlin Romano]. I could go on citing similar examples practically without limit, but my day job awaits.

    — Gustave    Dec 15, 05:40 PM    #

19. NoDoc—I didn’t give a definition but only some of the conditions of academic freedom. Still, your example falls within the limits of methodical investigation I indicated. “I’ll bet your president would be upset if you made unfavorable remarks about his/her leadership style in the classroom as an example of poor leadership styles and would consider your opinion as being poorly informed.” In a sociology or a business management class, or in applying Aristotle’s Politics to the university community, it would fall within the bounds of academic freedom. (But the president of my university might still resent it.) Interrupting my lecture in Music 3341 analyzing the chord structure of Beethoven’s Eroica Symphony to criticize the president’s management style would not (all things being equal).

    Most people when they use “academic freedom” have some indeterminate notion in mind, even a “pie-in-the-sky” ideal. I prefer to work from the 1940 AAUP Statement of Principles on Academic Freedom and Tenure. Under “Academic Freedom” there are three points, a., b., and c.: I quote the first two in their entirety (c. is about speaking outside the bounds of the academic community):

    (a) Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of their institution.
    (b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

    — dionysos    Dec 15, 05:40 PM    #

20. Mr Furr,

    FIRE does not condone the right to “stand up at any time and scream insults.” Their guides recognize the validity of time, place, and manner restrictions on speech. If the MSU speech code said that you could not disrupt classes or cause disturbances in academic buildings it would be fine. A vague ban on “threatening or obscene language or behavior in public places” includes a variety of protected speech.

    — Jim    Dec 15, 06:08 PM    #

21. This “free speech” problem is a manufactured crisis, and you people who take it seriously are stooges for the people who are making a salary and a career and getting media attention, out of nothing, at FIRE. It’s equivalent to the credit bubble representing fake wealth that just recently vanished into thin air when the bubble burst. FIRE is manufacturing a blow hard bubble….

    — Andrea    Dec 15, 06:11 PM    #

22. A web search on “Grover Furr” will reveal that Mr. Furr is one of the last-surviving Soviet-era Stalin-was-misunderstood communists in North America. It shouldn’t be surprising that he opposes FIRE, one of the preeminent civil liberties organizations in the United States.

    — little guy    Dec 15, 06:54 PM    #

23. FIRE, one of the preeminent civil liberties organizations in the United States?

    Self-aggrandizement will get you nowhere.

    How can a school get a “red light” if there is no evidence of actual suppression of dissent?

    Your study is bogus because of this. Instead of defending your study you attack people.

    That’s why your site is considered political rather than scientific.

    Here is FIRE’s “Speech Code”

    Your e-mail address is required, but it will not be posted. Any comments deemed inappropriate — abusive, obscene, or off-topic — may be removed at our discretion without notice. Repeat offenders will be banned. Please refer to the user agreement for more details. Questions or concerns about an individual posting may be e-mailed to newseditor@chronicle.com.

    — oompa loompa    Dec 15, 07:26 PM    #

24. The First Amendment does not guarantee freedom of speech. It says only that the government can’t interfere with speech rights. Private entities can, and that includes private universities. The claim that a private university is violating the First Amendment is thus a non-sequitur.

    — CU Alum    Dec 15, 08:04 PM    #

25. “Actual suppression of dissent” is not necessary to deprive someone of their freedom of speech. If a campus ordinance declares that I may be punished for saying something the administration doesn’t like, I am much more likely to keep silent, or to censor myself. I might do so even if the ordinance is clearly illegal, because I do not possess the resources to vindicate my rights. And even if I do, and do so successfully, I might still keep silent because I am afraid that the university will find some other less visible way (denial of salary increases or, if a student, denial of properly-earned grades; public ostracism or “mobbing”; whispering campaigns) of retaliating against me.

    Freedom of speech has many enemies, some of them in positions of power, and some of them on this very thread. It’s ironic that it should be necessary to make these very obvious points on this day in particular, “Bill of Rights Day.”

    — Gustave    Dec 15, 08:10 PM    #

26. The Constitution guarantees freedom of speech.

    There is absolutely no right not to be ridiculed, mocked, or called names, or have your feelings hurt. Your feelings = your problem.

    There is absolutely no right not to have everything you consider most holy and/or virtuous (metaphorically) rubbed in dung, until your head wants to explode with rage and frustration.

    None. None whatsoever. All you can do is reply in kind.

    Freedom is hard, raw, rough, bruising. It’s not for the thin of skin.

    — S.M. Stirling    Dec 16, 01:02 AM    #

27. I am quite sure that freedom of speech as envisioned by the founding fathers did not include a right to make threats, spout obscenities, or disturb the peace (including the use of bull horns). However, that does not prohibit you from making any statement you wish to, using any words that happen to come to mind, no matter how offensive (court defined obscenities perhaps being an exception). Keep in mind, however, if you spout provable falsehoods, you may find yourself subject to a tort action (granted, much harder to prove in the US than in England).

    Colleges and universities are in “damned if you do and damned if you don’t” territory, and a number of them have evidently caved into PC pressure to adopt speech codes that clearly violate the first amendment. They also find themselves pilloried on decisions to bring controversial speakers to campus (the President of Iran and Bill Ayers come to mind). Any policy statement that seeks to regulate speech should be looked upon with jaundiced eye, although the transitional nature of the collegiate experience probably justifies some minimal restrictions (the majority of collegians are in the age group of those most easily indoctrinated after all, whether for ROTC or the Hare Krishnas).

    I know very little about FIRE, but am happy to see the attention they are bringing to a very serious concern.

    The outgoing administration has not exactly been a champion of the Bill of Rights, including the first amendment, and its supporters have been all too quick to give up very hard won rights under a false illusion of greater security (or perhaps to score political points). Colleges and Universities should be the last place constitutionally protected rights are abrogated.

    — CW    Dec 16, 01:06 AM    #

28. “I am quite sure that freedom of speech as envisioned by the founding fathers did not include a right to make threats, spout obscenities, or disturb the peace”

    — considering the sort of things that were said in the newspapers and political pamphlets of the early National period, you’re probably wrong.

    “Disturbing the peace” has to be narrowly defined, generally as violence or its direct threat.

    Simply saying or doing something that enrages someone else into a frenzy doesn’t count.

    For instance, the courts have upheld obscenity when used in political satire or attack — a jacket saying “Fuck the Draft” worn in a courthouse in one notable instance.

    — S.M. Stirling    Dec 16, 01:26 AM    #

29. G. Furr:
    “

    In short, FIRE’s “study” is dishonest in the extreme. To call these paragraphs “speech codes” can only be intended to give a deliberately misleading impression — that is, to lie.”

    You say that, but really? I think the FIRE page has a generally valid point.

    “Here’s an example of a statement from Montclair State U. that FIRE calls a “speech code”:

    Whether or not that example is in violation of the first amendment is completely up to how it is enforced. Throwing me out of school for screaming “FUCK YOU” during a graduation would not violate the first in my opinion, but throwing me out of school for screaming the same during a heated public debate in a common area would.

    However, lets just assume you are correct, that that is CLEARLY not a “speech code.” What would you say to this example?

    “Signs, which promote the consumption of alcohol, the use of controlled dangerous substances, or anything, viewed as obscene and inappropriate behavior may not be displayed in any public area (e.g., windows, students room windows, doors, common areas, etc.).”

    If I choose to wear a sandwich board that says “Obama wants you to drink a beer!”, that, would, in your professional opinion, NOT be protected speech in the ‘real world’ ? If you think it WOULD be protected, how do you justify its prohibition on the entire grounds of a public university campus?

    — Steven Braeger    Dec 16, 04:11 AM    #

30. In the documentary, Indoctrination U, FIRE officers describe themselves as Democrats. They claim they have to defend conservative students and faculty more often because they are the ones being targeted by educational institutions.

    — Red State University    Dec 16, 06:31 AM    #

31. Before you matriculate at a particular higher education institution, read the rules. When you pay your tuition and fees you are paying for the privilege of attending that school on their terms, not yours. If you don’t like the rules, go someplace else. If you are looking for an educational setting where all speech is accepted, then find one, go there, and speak your mind. The same goes for cheating on exams. If you believe in the right to have the correct answer by any means, then find a school that doesn’t punish cheaters.

    I don’t see what the Constitutional guarantee of “free speech” has to do with colleges and universities.

    — Philip J Tramdack    Dec 16, 07:52 AM    #

32. I have downloaded the FIRE listing of Colleges and Universities and have at best glanced at it enough to determine where my University, USC, as in Los Angeles not South Carolina, is rated. Frankly, I don’t know enough to comment on FIRE.

    However, in reading one of the earlier comments, I was astonished at the definition of Academic Freedom as referenced here by dionysos , quoting from a 1940 AAUP Statement of Principles on Academic Freedom and Tenure. Under “Academic Freedom”
    “(a) Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of their institution.

    Are you saying,. Sir, that these standards formulated 68 years ago are still in place in major universities of this country such as UC Berkeley, Harvard, Duke, Stanford and USC to name a few?

    I’m not sure I understood what “pecuniary return” means, but if you’re saying that a tenured professor has to get the OK of his or her Board of Trustees, as an example, to follow a new direction and/or method not originally noted in the summation of the research to be undertaken? In other words, you’ve just discovered what may be a real way to turn water into wine or split the atom, but in order to pursue this mankind changing research lead, which means abandoning your grant on Trout Fishing in Quebec, Biff Burnside, the Toilet Bowl King and influential Trustee has to say Okie Dokie?

    Even more disturbing to me would be paragraph (b) of the AAUP Statement:

    (b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.” —

    Two years after this statute went into effect, the James Thurber-Elliott Nugent hit Broadway play, “The Male Animal” was released as a motion picture starring Henry Fonda as a college English professor who had drawn the wrath of an influential trustee because Fonda intended, quoting the original NY Times review,
    “ to read a letter by Bartolomeo Vanzetti to his English class as an example of prose composition.” Vanzetti of Sacco and Vanzetti fame was an “anarchist”, according to the Trustee and he wanted Fonda silenced or dismissed if he, in effect, “introduced into his teaching such a controversial( to the trustee) matter that, again according to the Biff of Fonda’s college, had no relation to the subject.

    I did not see or hear of any such restrictions at USC when I was a student in the 1960’s, and I would be appalled to learn of any legitimate college or university condoning such nonsense today.

    — Bill Baldwin, Jr.    Dec 16, 08:01 AM    #

33. I see that Sara is not defending her article here, and Kyle has gone running off, refusing to defend what she wrote. Typical of people unable to back up their assertions.

    The sad fact is that an organization like FIRE is needed. The nonsense at SUNY Binghamton, LeMoyne college, and other institutes of “higher” learn show that free speech is acceptable so long as you express what the powers that be deem acceptable. Working at multiple Universities over my career I have seen first hand the intolerance and outright squashing of a person’s rights that is done in the name of PC. “diversity”, and tolerance. Organizations like FIRE are needed to shine a light on these abuses and bring pressure to bear on these morally repugnant, and in some cases illegal, actions. That a number of people are trying to whitewash these acts against individuals and their civil rights is saddening and infuriating.

    And for those of you who are ignorant of Federal (And many State) laws: the moment you accept one penny of government money you are bound by their laws and regulations. Cries of “Private institution!” ring hollow when you’re sucking at the taxpayer’s teat. Why not ask Harvard, Yale, and Cornell how well that worked for them when they stood in front of the Supreme Court as they defied the Solomon Act?

    You want to play petty tyrant, ignore the Bill of Rights and show us how tolerant and understand you are? Fine. Give up those grants, tax breaks, and gifts from the taxpayers. Start paying taxes like everyone else. Otherwise, start following the law and don’t stomp on the little guy like you do today. Hypocrisy does not become you.

    — Tristan Phillips    Dec 16, 08:24 AM    #

34. These comments are absurd: Colleges can make any rules they want, unless they want rules that permit free speech, and constitutional rights have nothing to do with colleges, unless someone is offended by someone’s civilly prohibited speech. Colleges get sued in courts that make reference to constitutional rights and legislated laws, that’s why colleges try to accommodate, even while they try to do what they are supposed to do, namely, create an intellectual environment of free and liberal (liberal in the sense of unrestricted, not left-wing) thought, expression, and teaching. If the courts would refuse to take jurisdiction over most of the complaints taken to them, that would help a lot. Alternatively, if we stopped paying the courts to take jurisdiction over these matters they should not take jurisdiction over, that would help a lot (few of these lawyers and judges would do so much damage gratis or, I can hardly write it, it’s so absurd, pro bono).

    — Pat    Dec 16, 08:32 AM    #

35. Much of what’s been said here about FIRE is correct. But one has to put them in proper perspective.

    They’re sort of a right wing ACLU, though their focus is more exclusively on higher ed. Imho, many of their causes are good ones, even though their political slant is obvious and it’s not my own. They essentially defend right wing speech on campus, with a few token lefties thrown in (e.g., they admirably defended Ward Churchill’s academic freedom at Colorado—not to be confused with the fraud issues involved). Their official view of themselves is that they merely happen to be defending right wing speech because that’s what de facto is being threatened on today’s college campuses. They’re probably right about that and I find myself welcoming most of their initiatives. But they are, I think, selective in a way that goes beyond their neutrality claim. This is where their political agenda is apparent. They’re neutral sort of like “Hannity & Colmes” is officially neutral (Kors = Hannity, Silverglate = Colmes). But so what if I don’t like their general political thrust? Like the broken clock, they’re correct twice a day.

    The answer to groups like this is to create one’s own left-leaning First Amendment advocacy group or simply support the ACLU. On the whole, though the selectivity problem can be annoying, we’re all better off when there are more passionate defenders of basic constitutional rights—whatever their politics. The more the merrier. What we want is as robust as possible an overlapping consensus on basic rights. So as a civil libertarian I say one should welcome FIRE yet also fight FIRE with more fire.

    — DB    Dec 16, 08:46 AM    #

36. Tangential to the issues: Is anyone else struck by the degree of illiteracy in many these comments? It seems way above the usual level here.

    — Puzzled    Dec 16, 08:52 AM    #

37. Philip,

    If, as you say, universities are free to make any rule they want and if you don’t like it you should go somewhere else, then does it follow that they are free, in your mind, to ignore the rules on handicapped parking, for instance, as long as they make it clear in their written policy that they plan to do so?

    — competitive edge    Dec 16, 10:47 AM    #

38. To competitive edge (#37):

    Colleges and universities must obey the same laws as everyone else. As I noted earlier, though, the First Amendment (like the rest of the Constitution) applies only to the government. It does not apply to private actors — including colleges, corporations, hospitals, individuals, etc. There would be no basis for a college to claim it is exempt from generally-applicable laws like the example you give, but the First Amendment is not such a law.

    — CU Alum    Dec 16, 10:57 AM    #

39. FIRE is political fraud. I contacted them some years ago. I looked at their web site where they listed universities whose cases they handled. There was the University of Toronto there. But, they told me that they handle only US universities. Next – University of Toronto case was removed from their site.
    In the same way as you can see Horowitz as unpolitical freedom fighter, in the same way FIRE is unpolitical. I won’t continue the comparison.

    — Michael Pyshnov    Dec 16, 11:46 AM    #

40. Universities, which are just teeming with Leftists and elitist liberals, will find ways to punish those who do not conform to a given ideology. Whether that is in denying tenure, subtly ostracizing, or simply giving a lower grade to an obvious conservative, there are certainly ways to push for conformity. The tragedy is that a lack of diversity of opinion means a stunted education where no one bothers to pursue true inquiries. As a UW-Madison alum, I can certainly testify to the rampant ideological insularity I found on my campus. Indeed, I am constantly amazed to hear any relatively conservative voice on the Chronicle’s page. I guess we closeted conservatives have the nerve to associate with academia. :-)

    — UW Madison Alum    Dec 16, 12:19 PM    #

41. Alum, FIRE are not “closeted conservatives”, they are extremely active neo-conservatives :-)
    O, boy, he didn’t learn the difference yet!

    — Michael Pyshnov    Dec 16, 12:37 PM    #

42. Michael, I don’t see how the neo-con label applies here. You might want to check the definition of a neo-con, my friend. It applies to a conservative brand of ideology relating to international affairs, so that is a strange choice of words for this discussion. Anyway, moving on.

    — UW Madison Alum    Dec 16, 12:47 PM    #

43. After reading many of the posts above I have one question for everyone here: What about creating a campus environment that is conducive to learning for ALL students? That seems to be at the heart of many of the “speech codes” that FIRE inappropriately labels as “red”.

    All students, staff, and faculty have a right to be on campus but no person has a right to harrass, name call, abuse, or badly treat another person – PERIOD! FIRE’s support of this nonsensical rhetoric only supports and maintains aggression, oppression, abuse, anti-intellectualism, and pure ignorance.

    Speech policies are in place in an effort to create a learning environment for all students. And most universities that discipline students who have violated these policies use this as a teachable moment as this is not how people should be in the world.

    Because we all share this fabricated space we all have to find ways to work and live with one another even when our views may be percieved as vile by others.

    So, the role of an educational institution is to educate students to use their intellect to argue and debate their views intellectually regardless of how others may percieve them. It seems we would all do good to remember the goals/aims/missions of higher education.

    — higher ed critic    Dec 16, 12:51 PM    #

44. Free speech rights are constrained by competing rights of students and university employees to study and work in an environment free of harassment based on protected classes (e.g., sex, race, religion, national origin, etc.).

    Anti-harassment law is primarily case law (not statutory). The US Supreme Court, in Faragher v. City of Boca Raton and in Ellerth v. Burlington Industries has ruled that employers have an obligation to be proactive in preventing behavior (including speech) that creates a “hostile environment”. Such actions or speech are those that are severe enough or pervasive enough that a “reasonable person” would consider them harassing (based on sex, religion, race, national origin, etc.).

    Balancing students’ and employees’ rights to study and work in harassment free environments with individuals’ free speech rights is an issue that public universities must struggle with. And speech codes can go too far — outlawing behavior/speech that doesn’t rise to the level of harassment. But, it is not true that the right to free speech is unlimited.
    Saranna Thornton
    Professor of Economics

    — Saranna Thornton    Dec 16, 12:52 PM    #

45. Prof. Thornton is of course correct. What she may not know, though, is that no single statement can ever, of itself, create a “hostile environment” according to legal definitions of the term. In just about every case, however, speech codes where they have been applied seek to punish single statements. I am not aware of any case where a university has ever lost a Title VII suit because the court found a hostile environment existed as a result of students or faculty exercising their First Amendment rights.

    — Gustave    Dec 16, 01:33 PM    #

46. How many of the speech codes FIRE flags are there simply because they are unconstitutionally vague? Most likely a majority of them. Common sense prevails in most instances on most campuses, but you always have the potential for nonsense, like the Michigan State “spam” case, where zealous administrators use such vagueness for their own advantage.

    I’m also dismayed that so few people recognize that PUBLIC colleges and universities are required to follow the Constitution, because they are public.

    — Rich Horton    Dec 16, 04:07 PM    #

47. #43
    “Speech policies are in place in an effort to create a learning environment for all students. And most universities that discipline students who have violated these policies use this as a teachable moment as this is not how people should be in the world.”

    Nonsense; speech codes have been institutionalized to insulate administrations from the noise and ruckus of contentious debate, and to prevent the recurrence of the demos, sit-ins, and so forth that were characteristic of protests, particularly by minorities, in previous decades. The fear of incidents like the occupation of an administration building by black students (which happened at Cornell a generation ago) trumps any serious commitment to civil lliberties and free speech.

    By the way, a number of posters have remarked that constitutional strictures don’t apply to private universities. This is true, though there are some state laws requiring private colleges to uphold First Amendment standards. But it is irrelevant to the FIRE study, which restricted itself to the patently illegal behaviior of publiclly-supported institutions—illegal because such schools are state actors, as a matter of law, and therefore strictly bound by the First and Fourteenth Amendments.

    — Fossil    Dec 16, 04:13 PM    #

48. FIRE is well aware of the legal definition of harassment and often points out that colleges can, and should, prevent harassment. They also point out that universities re-define the term in their policies, beyond that legal definition, to include protected speech. I don’t think I can post a link, but if you Google “Jon Gould’s Circular Reasoning on Sexual Harassment”, you’ll find an article addressing the distinction as it relates to sexual harassment.

    — roy    Dec 16, 05:49 PM    #

49. 1.Before you matriculate at a particular higher education institution, read the rules. When you pay your tuition and fees you are paying for the privilege of attending that school on their terms, not yours. If you don�t like the rules, go someplace else. If you are looking for an educational setting where all speech is accepted, then find one, go there, and speak your mind. The same goes for cheating on exams. If you believe in the right to have the correct answer by any means, then find a school that doesn�t punish cheaters.
    I don�t see what the Constitutional guarantee of �free speech� has to do with colleges and universities.

    And you wouldn�t, would you? You see, it is as much about the spirit of an open, free debate. Those on the extremes absolutely hate that. In the case of modern academia, it is truly overrun with PC in the soft sciences. They hate having their beliefs challenged, and try to shut down debate. Your line of argument seems to be one of might makes right. Practically applied, �we will abuse power, and if you don�t like it, go elsewhere�.

    Let me ask you�what if the civil rights workers before our segregation laws were passed, just layed down and accepted that belief? It�s analogous to the KKK saying: �look�these laws might not be fair, but who asked you? Go live outside of �Bama�.or Georgia�or Mississippi��.

    — Eric    Dec 16, 06:58 PM    #

50. I feel compelled to point those interested in the topic of campus speech codes to an essay by Gary Pavela. It was published in the Chronicle of Higher Ed Review, as well as the Florida Philosophical Review.

    You can read it

    here

    I think Pavela provides good insight into many of the issues that have been raised in these comments above.

    — M.K.    Dec 16, 11:23 PM    #

51. Yawn!

    Sorry, I’ve been napping…is it still 1997? Are we still arguing about speech codes?

    Dude, this is so last century….

    Everybody’s against speech codes now, from David Horowitz to the AAUP to the ACLU….let it go!

    I’m only commenting to bump the number of comments over 50 so this story can make the “most commented” list for the month…

    Fight the Power!!

    — JCWT    Dec 17, 09:49 AM    #

52. Unfortunately, we ARE still arguing about speech codes, and too many universities still have them. And FIRE is just about the only organization that fights for our First Amendment rights without regard to the viewpoint of the party being censored. If FIRE appears to some to be “right wing”, it’s only because most of those being censored on campus are the victims of “left wing” political correctness.

    — Robert    Dec 17, 10:51 AM    #

53. Me thinks the leftie posters here that slander FIRE, with no evidence, examples, links, or even logic, are just a might bit peeved that the game is up.

    I mean, how dare anyone challenge their lock on power?

    — Eric    Dec 17, 11:22 AM    #

54. If you are concerned with any conservative bias at The Fire, I suggestion you go here:

    http://www.thefire.org/index.php/article/8917.html

    Yes – it is hosted by them, but I promise not to tell your starbucks friends that you looked. Also, there’s really very little chance of conservative contamination, at least as long as you’re not watching fox news at the same time.

    The link is a letter from Fire to a board of trustees – it gives a brief rundown of the Brandeis University incident (and near revolt by the entire faculty).

    Just remember – this was an incident where a history professor took a student to task for using a racial epitaph (“wet back”) his Latin American Politics class. He engaged in debate with an ignorant student and in doing so was able to confront the that ignorance and help the student to understand where the term comes from and why it is unacceptable to use the term. I would argue that such exchanges are the only truly “irreplacable” aspect of the university system. I can get a copy of a syllabus, buy all the text books (or find them online) and maybe even read notes from my classmates. Give me a philosphy student drop-out with a flashlight and a clipboard, and he can hand out tests, make sure I’m not cheating, and hit “play” on the lecture tapes. He won’t even have to ask me if I want any french fries.

    The only distinction between the above scenario and an actual university program – aside from a certain rapidly devaluating slip of paper – is that in a college classroom the students can make comments and ask questions and the professor can respond. Every student has a right to free expression, but a professor has an obligation. I would certainly argue that there is a liberal bias in college classrooms – but I can just as effectively argue that it doesn’t matter. I have no use for professors who agree with me on everything – I would learn nothing from the experience. I would be paying a lot of money to have someone smart tell me that I was smart too. I also have no use for a professor who is afraid to challenge me when I say something idiotic. Extreme example: I was actually in a feminism class when a guy told the teacher he thought it was ridiculous that men could be charged with rape for having sex with date who was passed out drunk. She responded with her own exercise in free expression which I would not describe as “hesitant”. A few minutes later the guy was almost in tears. He agreed to write a an essay for the next class on the relationship between “the act of conscent” and “being awake”. He was quite apologetic.

    To be clear – I am not defending that guy – or his character. What I am saying, is that the classroom is exactly the place those confronations need to happen. I’m sure he would rather learn the lessons in harsh words from a teacher than in more restrained words from a judge. I’m sure his dates – which clearly did not include anyone from that classroom – would be thankful too. The same is true of issues such as sexism, racism, religious hatred – but if a student is afraid to ask, or a professor is afraid to answer, you’re not longer getting an education. You’re paying $10,000’s for a access to an overpriced bookstore. You can drink just as much without the college experience and almost all the information in those books is availibile for free online. The ability to engage in controvertial speech – and when topically justifiable – even offensive speech – is an absolutely fundamental component of the university system.

    In the case at Brandeis University – there was only one student complaint, but the criteria for “harassment” is simply whether or not someone felt insulted or offended. There was essentially no due process, and the Faculty Senate appealed the decison of the Provost to find the professor guilty. By policy – final say over the appeals process rest solely in the hands of…the Provost. And, she did not feel that ruling on an appeal specifically questioing her actions constituted a conflict of interest. It is also worth nothing that to this day, the professor still has not been provided with a written explanation of exactly what he did wrong.

    In most cases, these universities are “red” because their policies provide no objective criteria for evaluating a complaint of harassment – if someone feels offended, that is enough. With no objective criteria, it often comes down to the judgment of one person who’s primary responsibility is to try to keep the university from being sued. If they have to rough up a professor and his reputation, small price to pay. If professors are afraid to engage in spirited debate with the students or the students are afraid to question the professor – there is no environment for education. This really is a practical matter and the spectrum of things that could be said by student or professor is really not what’s important.

    If you value the liberal concept of the Open Society (do they still talk about this?), you understand that putting the “right people” into power above you is not a solution. Even if you can convince yourself that they are trustworthy, the mechanisms they create will one day be managed by someone who is not worthy of your trust (say – a republican). The Provost ignored the recommendation of the Faculty Senate – an action that the faculty believes is against their labor agreement.

    None of this has anything to do with liberalism or conservatism. If there is a bias, but it’s regarding the amount of importance they put on the professorship and the university in general. (To sum it up…“lots”)

    I will say this – if you are skeptical of Fire, please go to that link and then from there you can view the letter the Faculty Senate sent to the Provost (it’s a pdf). It explains exactly the kinds of issues that can erupt over something as simple as a poorly worded policy. Any university employee should read that letter, as similar policies are likely in palcould be abused at their school as well.

    The Fire does focus on a defense of free speech, but their focus is on fighting back a growing trend in the academic world where colleges are more and more willing to throw their students and faculty “under the bus” to avoid a frivolous lawsuit. That is their politics. They will sometimes comment on a free speech challenge in some other aspect of government, but they are focused on the university system because that’s what they care about. Not everything is divided into liberal and conservative. Schadenfreude is quite delicious, no matter what flavor you prefer – I’m not saying you have to stop hating conservatives. But consider that – even on college campuses – it’s virtually impossible to make life better for everyone without helping the occasional republican.

    Also – if you do respond to this – please TRY to deviate from the stereotypical “haha – evil conservatives!! You lost the election!!”. It doesn’t have to be a complete original thought – just something I haven’t heard before. (and yes – I’ve heard of halliburton) Maybe – just throw in a food you like. So, after you call me an evil or ignorant, just tell me how much you like spagettios. That way, I know you’ve read it and responded to at least one point that I made. Preferably without the dripping sarcasm, but I’ll take what I can get.

    — S K    Dec 17, 09:44 PM    #

55. I tend to agree with much of what S K said in the last comment. What I think we need to delineate and come to an understanding of is when that “free speech” becomes abusive. Harrassment policies are overly vague – I totally agree with that. How many times have we seen someone take this way too literally and file a complaint because someone cussed in their presence or something equally ridiculous?

    The bottom line is that everyone deserves to live, learn, and work in a place that doesn’t challenge their very existence. The story about the “wet back” comment is a great example and I’m glad in that case the professor was able to address that student directly, educate, and handle that particular situation.

    What becomes more complex and problematic is when there are racist, sexist, homophobic, or other acts of verbal aggression on a college campus aimed at a person based upon some aspect of their identity. These acts cross the line, creating a hostile environment, leaving many people afraid to exist in that environment. Most higher ed institutions have a long history of white supremacy as does most of our institutions and systems in this country. I don’t know about your college campus but I can speak to mine, although progressive as an education institution there is still a sense of entitlement that our white privileged students have. This sometimes comes out in words, words that are meant to be violent and make particular people feel like they do not belong and should not be on that campus. In many cases the “speech codes” are aimed at these actions in order to create a welcoming learning environment for all students. Because, as I stated in my previous comment no one has the right to verbally, mentally, or spiritually abuse another person and this is where speech codes become contested space. White middle class straight able-bodied men usually have a difficult time understanding the effects of long term systemic forms of oppression and how words have been used to keep us in our place. Yes, I have said it – that is the purpose of many these words, an attempt to keep us in our place(those not like the imagined mythical norm of the straight, white, able bodied, middle class, male).

    So all though this is all well and good to say that everyone deserves to speak their mind under the auspices of free speech this argument also needs to take into account the rights of others who have to hear this, those whom the words are directed at, and others who have to share the same environmental spaces. Although, we all have the right (which is not absolute) to free speech I think we need to focus on when that right crosses the line of being abusive to others. This becomes quite clear to people who have been on the recieving end of any kind of abuse – as a child, as a spouse, in the work place, or as a student. There is a time, place, and way of engaging the kind of speech FIRE supports and it doesn’t include absolute freedom (which by the way is a complete illusion anyways) that also doesn’t have to be punitive.

    I too believe education is the way while at the same time recognizing it is a balance of making the space conducive to all learners. It seems we all have to compromise some aspect of ourselves in order to live among others but we shouldn’t have to compromise identity aspects because others wish to hide their racist, sexist, homophobic, or whatever selves behind the essence of free speech by interpreting it as an absolute freedom. When other’s free speech challenges aspects of a person’s identity in ways that make them feel like they need to deny or abandon themselves, their heritage, or otherwise it is not healthy for any person or the learning, living, working environment of the institution.

    Again, the balance must be struck and FIRE isn’t helping to strike that balance. From what I gather the group is more like a two-year old throwing a tantrum about not having absolutely everything they want at whatever cost. People always seem willing to fight for what they want regardless how others may have to pay for it, this issue is no different. There are costs to interpreting free speech as FIRE has done. So I guess so long as the dominant group isn’t put out any it is fine because it is only the people of color, the women, the groups who have been marginalized within society who have to pay. No worries, the institution wasn’t created for them anyways, why make them feel like they have just as much right to be on the campus? That’s my truthful sarcasm. This country suffers from many things and we won’t truly be great until we can acknowledge and accept our racist past, acknowledging how this past has shaped our present, and do what we can to move beyond. We won’t truly be great until we can accept and embrace all people and see this multicultural diversity as an asset rather than a defecit and do what we can to empower all people to reach their full potential. This can’t be done until we can move beyond the polarized discussions, quit name calling, and put the human being instead of principles at the center of policy thinking. This, I believe, extends way beyond conservative/liberal, democrat/republican…I mean really that discussion does nothing to promote moving forward.

    — higher ed critic    Dec 18, 03:16 PM    #

56. To Higher Ed Critic,

    I can dissect and proof wrong so much of what you’re saying, but it’s not worth the time. Your delusions and bizarre reading of history are apparent to readers of your post.

    However, I do want to simply state that your (ignorant) racial theories engender racial animus towards white men. Therefore, they create a hostile working and physcial environment for white men. Furthermore, it offends me. As a result,I think you should no longer have the right to say these things and you need to be punished. Your own theories on free speech support my suggesion.

    Eric

    — Eric    Dec 18, 10:58 PM    #

57. OOOPS, I meant “prove” wrong. I type too fast.

    :)

    — Eric    Dec 19, 09:40 AM    #

58. Eric, I’m not sure which reading of history is bizarre, so let me share some primary sources. You can look at the actions and words of the founding fathers of this country – for example, Benjamin Franklin for clear evidence of how this country and its systems were to be built to maintain white supremacy. Other leaders of this country have also overtly and violently supported ideals of white supremacy, President Jackson comes to mind – lest we forget his violence, both in murdering and then in educating the “savage” Native Americans. Or even Richard Pratt, the founder of the Carlisle Indian Boarding School whose mission it was to “kill the Indian, save the man”, the definition of man was grounded in whitness and white supremacy. You can look to the writings of Joel Spring an educational historian who has clearly documented who education is to serve. You can also look at authors such as John Thelin and Christopher Lucas higher education historians who have also documented how higher education in the U.S. came into being for white, affluent, Christian, straight, able-bodied males. I did not make this history up. I think the very fact that you can challenge me and my ideas in such an anti-intellectual way and I then need to inform you that I indeed am well read – not an “ignorant” savage makes many points about the system still being shrouded in white supremist ideals.

    What I was saying is that systems created and sustained by such (as mentioned above )ideologies have remnants of those ideologies still within them that emerge in ways that we can’t always predict.

    You may disagree and that is okay. There is nothing within my words that is hostile to any group. What I say and believe to be true is that by acknowledging this history and embracing the individual (all individuals) over some of our “inalienable rights” such as free speech we can create a welcoming and healthy learning environment for ALL learners. I believe to move forward as if free speech is an absolute right ignores the abuses that happen on all college campuses. Further, by being silent implies support of the abuse of other human beings. So although people do have a right to say what they want those same people do not have the right to verbally, mentally, or spiritually abuse me or anyone else with their words (physical abuse is already illegal so no need to go into that here). Because I have lived in hostile environments both as a wife and mother as well as an employee on a higher ed campus I am attuned to particular (but not all forms of) verbal, mental, and spiritual abuse whereas many privileged white men may have difficulties understanding because they do not have to justify their existence in the same ways that marginalized people do. You can see Allan Johnson’s book on this idea. This in not an attack on white males but an opportunity to see that there are many ways to view the world and many people do not have the same experiences as white males.

    I am not saying that people shouldn’t have the right to engage in scholarly discussion and express ideas that are less than popular – that would be anti-thetical to the mission and goals of higher education, I am saying that there are places and circumstances where the expression of ideas cross a line and those of us in higher education need to examine when/where this happens while being aware of how various constituencies on the college campus are affected by the remarks.

    If you have read other literatures about the history of education or higher education than those that I mention, please feel free to share. Perhaps by sharing the ideas we (I mean a global we not just you and I) can move beyond the polarized positionalities that seem to shape many of these discussions and replies.

    — higher ed critic    Dec 19, 01:25 PM    #

59. Higher Ed Critic,

    I am actually studying for a final, so look for a more full reply over the next couple of days. It will be rather lenghty as you have given me so much to work with. However, you need to re-read your own last post.

    Real quick, because it’s tasty: your entire first paragraph showing examples of white men in our PAST reflecting racism was never in dispute. Did you hear me deny a past of racism in America? No, you didn’t. If you persist in implying that, the burden of proof is on you to supply that. You might impossible that hard given my very short posts here. You are then left with a straw man of an arguement. Words you need to put into my mouth to prove an arguement you would rather refure, other than the one I was making.

    For the record, as a straight white male, I have also been in hostile environments. “White Studies”, which more or less denies that racism and racist acts can be found by ALL RACES, and focuses on just one-that being Whites-creates a hostile learning environment. I’ve also been beaten up for being white, because the black racists that attacked me couldn’t see their own actions as being racist. Gee…I wonder where they got that line of thinking.

    You backed yourself up into such a corner, and you don’t even see it.

    More when I am done with my final.

    — Eric    Dec 19, 05:41 PM    #

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