Keeping Free Speech Alive on Campus
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The author of this post is Robert Shibley.
Every year, my organization, the Foundation for Individual Rights in Education (FIRE), issues its annual Spotlight on Speech Codes report in which we rate the speech codes of more than 400 of the largest and most prestigious colleges and universities in America using a red, yellow, and green light system. A valuable partner in this process has been the Pope Center for Higher Education Policy, which frequently works with FIRE to get the word out about the report and ensure that North Carolina's colleges are up-to-date and included.
In this year's survey, and for the first time in FIRE's history, the number of rated schools nationwide that received a red light rating dropped under 50 percent, with about 49 percent receiving that designation. Another 44 percent of schools were yellow light. And a dismal 5 percent-that's just 22 schools-had green-light policies. That's right-out of the 440 schools rated across the nation, only 22 thought it necessary to take the time to make sure their policies don't violate Constitutional rights or their own promises of free speech.
While North Carolina is actually better off than most states when it comes to free speech, that doesn't mean that there aren't significant problems, with North Carolina schools found in every category from worst to best.
In the worst cases, FIRE rates a school a "red light" when it has a speech code that is blatantly unconstitutional at a public university, or that violates its own promises of freedom of speech at a private university. (Private universities are not required to respect the First Amendment, but the vast majority of them, both nationally and in North Carolina, promise free speech anyway.) For example, the University of North Carolina at Greensboro maintains a red light policy stating that "UNCG will not tolerate any harassment of, discrimination against, or disrespect for persons." What constitutes "disrespect" varies widely from person to person, which is why the First Amendment forbids government institutions from imposing such a vague and broad rule. After all, anything from chants at a basketball or football game to Black Lives Matter protests (and counter-protests) could be prohibited under such a rule, were UNCG to enforce it.
Yellow light schools have codes that, while not as bad as red light codes, are written in a way that allows them to be too easily used to violate the Constitution or a university's promises of free speech. (At a public school, a yellow light code is still unconstitutional.) NC State, for instance, maintains a yellow light policy that allows the university to limit approved events to "events that are consistent with the University's mission and purpose of the location." Depending on how this policy is interpreted, it has the potential to limit student protest and gatherings to those that meet NC State administrators' personal or political preferences. For instance, administrators could use this policy to ban protests in favor of concealed carry of handguns on campus because, in their personal or political opinions, the protesters' message might go against the school's mission of, "[p]roviding residential environments that are safe." Other universities have tried to ban such protests using this very logic. Yet to do so is a clear violation of the First Amendment's guarantee of the right of free assembly.
Lastly, green light universities maintain no policies that either violate the Constitution or that could reasonably be used to violate it or the university's own promises of free speech. I am happy to report that this July, the University of North Carolina at Chapel Hill revised its remaining speech codes, joining that exclusive list of only 22 schools in the nation that have managed to do so. Carolina's move to a green light is an excellent example of how much a university can change in such a short period of time once it is willing to work with FIRE. As recently as 2013, Carolina actually managed to earn a spot on FIRE's annual list of The 10 Worst Colleges for Free Speech. The university had used a provision in the school's Honor Code that prohibited "disruptive or intimidating behavior" in order to discipline a female student for publicly criticizing UNC's handling of her sexual assault case. Under pressure from FIRE, UNC reversed course and eliminated that policy, and eventually worked with FIRE to eliminate all of its remaining questionable policies.
While things are slowly improving on the policy front, the total lack of effort that universities have put into educating students on free speech issues is contributing to the rising trend of student protesters demanding restrictive speech codes. For instance, protesting members of the Duke University community have demanded a policy defining hate speech as "speech that offends, threatens, or insults groups, based on race, color, religion, national origin, sexual orientation, sex, gender identity, gender expression, disability, or other traits." Once this definition is established, they want professors and non-academic employees to be "in danger of losing their jobs" and non-tenure track faculty at risk of losing "tenure status if they perpetuate hate speech" through their research. (This is not just a Duke problem; UNC-Greensboro students have made similar demands, including the banning of "hate groups.")
Yet, contra the Duke students, in the United States there is no legal definition of "hate speech," and for the government to adopt Duke's definition and punish people for violating it would be manifestly unconstitutional. And the problem with such demands doesn't even end there. If punishable actions for faculty members were to include not just vocalizing "hate speech" but also "perpetuating hate speech," whatever that means, administrators could use this to police speech as they see fit. This would put students and professors in a constant state of fear, worrying about whether they have done enough to prove their distaste for "hateful" speech.
Readers may remember that at NC State in 2010, protest ensued after someone painted the "n-word" on the wall of the campus's Free Expression Tunnel. Ultimately, NC State rightly refused to punish the person responsible. Yet in the wake of this incident, NC State later passed a civility policy that would have made any kind of offensive speech against the rules. The policy specifically noted that students will, "Refrain from utilizing technology in a way that is disrespectful and hurtful to others," "Create a community in which actions of bigotry, oppression and hatred will not be tolerated," and "Confront behavior or report to staff incidents of incivility and intolerance."
Let's examine what a serious commitment to this statement would actually mean. What if your roommate was the one who painted the tunnel? What if you were black? Would you be justified in saying something insulting to your roommate, or even (horror of horrors) yelling at them? To do so would be a normal, and justifiable, response. Yet under this civility statement, you'd be failing to live up to NC State's "community expectations," and liable to be punished. And it wouldn't stop there. Even "utilizing technology" to insult Bernie Sanders or Donald Trump on Facebook would be prohibited by such a policy. Under pressure from FIRE, NC State ultimately reversed course and decided not to make this policy enforceable-but it remains on the books.
Unfortunately, our campus culture is such that convincing students of the important role free speech plays in education has become increasingly difficult. In a recent survey commissioned by the William F. Buckley program at Yale, researchers found that 51 percent of students nationwide are in favor of speech codes to regulate speech at universities for students and faculty. Even worse, 72 percent of surveyed students support disciplinary action targeting "any student or faculty member on campus who uses language that is considered racist, sexist, homophobic or otherwise offensive." About a third of college students didn't even know which constitutional amendment protects the right to free speech, and a third of those who did thought the First Amendment has an exception for hate speech, which it does not. It's hard to see this as anything but a serious indictment of our educational system, both in college and at the K-12 level.
North Carolina's administrators could use better education as well. In 2014, UNC-Wilmington settled a 7-year-long lawsuit with Professor Mike Adams that cost the university nearly a million dollars of taxpayer money-just in payments to Adams and his attorneys. (I am confident much more was spent on UNC's own attorneys.) This disastrous legal battle was sparked by UNC-Wilmington administrators denying Adams' promotion to full professor for publishing his personal, conservative political viewpoints in non-university related outlets. UNCW's attempt to explain its decision in terms of performance was futile, as Adams consistently obtained positive course evaluations from students and met or exceeded expectations for publishing peer-reviewed articles.
After years of litigation, including an amicus brief from FIRE, the Fourth Circuit ultimately (though not surprisingly) found in Adams' favor. The majority opinion stated that his publications were "intended for and directed at a national or international audience on issues of public importance unrelated to any of Adams' assigned teaching duties at UNCW or any other terms of his employment found in the record" and could not be used to deny him promotion. His case, Adams v. Trustees of the University of North Carolina-Wilmington, now serves as landmark precedent reaffirming professors' ability to function as citizens outside the university-albeit an unnecessary landmark caused by poor bureaucratic decisions but paid for by you, the taxpayers of North Carolina.
Finding that many schools would not make changes to their policies until the courts became involved and money was on the line, FIRE launched its Stand Up For Speech Litigation Project on July 4th of 2014. Since the start of this program, FIRE has coordinated ten lawsuits by students and faculty against colleges that censor their expression. Seven lawsuits have been settled in our favor, with payouts for students and their attorneys, while the remaining three cases are still pending. FIRE has yet to lose a case. The majority of lawsuits organized so far deal with so-called "free speech zones" on campuses. These zones restrict student expression and their right to assembly to tiny, out-of-the-way areas of campus, and are uniformly losers in court. Nevertheless, at least one North Carolina public college continues to tempt fate by maintaining such a policy, with Elizabeth City State University designating only one spot on its campus for unplanned "free speech."
While FIRE's main concern is freedom of expression, we also work hard to defend due process on campus. In doing so, FIRE has worked extensively with bipartisan groups of North Carolina legislators. Indeed, in 2013, FIRE helped to pass North Carolina's Student and Administration Equality Act. This was the first state law in the nation to promise students attending public colleges and universities the right to an attorney when facing non-academic disciplinary charges. Prior to this law, K-12 North Carolina students had already been afforded similar rights when facing 10-day suspension or expulsion, but college students, despite facing life-changing sanctions in campus courts, were denied the right to an attorney. Since then, North Dakota and Arkansas have joined North Carolina in passing laws dealing with the right to counsel for students, and more states are considering such laws.
If the right to counsel in college tribunals seems unimportant to you, that's probably because you've have never been swept up by the kangaroo courts that now plague America's campuses. In too many cases, colleges ignore even the inadequate rules they do have in their headlong dash to make an example out of accused students, especially in the light of the current panic about alleged sexual assaults on campus. While it is a disservice to the public that universities are even trying to adjudicate serious crimes instead of passing them on to the proper authorities, giving students accused of serious crimes the right to hire a lawyer is at least a step in the right direction.
With the new year around the corner, I urge all North Carolinians to make a commitment to preserving individual rights on college campuses. Currently, FIRE is working nationally on a campaign to encourage universities to adopt the University of Chicago's new free speech policy statement. This statement promises "all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn," and recognizes that "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." Already, major universities like Princeton, Purdue, and the entire University of Wisconsin system, have adopted policies based on the Chicago statement in order to ensure that the liberal ideal of universities as marketplaces for ideas is protected through academic freedom and freedom of expression. For North Carolina schools or the UNC System to adopt such a statement would be a huge step towards meaningful reform. Students deserve the freedom to think and speak. It's therefore incumbent upon FIRE, the Pope Center, and people concerned about higher education reform everywhere to work as hard as we can to maintain the university as a marketplace for ideas.
(Editor's note: This article is adapted from a speech that Robert Shibley gave on December 11 at a Pope Center event in Chapel Hill.)