A new FIRE survey on freedom of speech in American colleges: mostly good news

The Foundation for Individual Rights in Education (FIRE) has a new report on speech codes on American campuses, highlighting the changes over the last few years (click on screenshot below to see it). The arc of free speech is bending in the right direction!

In this year’s survey, FIRE looked at the speech policies of 362 four-year public colleges and universities as well as 104 of “the nation’s most prestigious private institutions.” Private schools, not considered part of government, aren’t obliged to adhere to the First Amendment, but they should, particularly if the school (as many of them do) mentions in its materials that it has a pro-free-speech policy.

FIRE rated all schools using its usual system, giving them “light” or a warning indicator.

Red light: A school has “at least one policy both clearly and substantially restricting freedom of speech” OR requires a login and password to access its speech policies. Their red-light schools include Evergreen State (of course), but also Harvard University, Barnard College, Princeton University, The University of Michigan at Ann Arbor, and the University of Texas at Austin. As you see below, the percentage of all schools having a red-light rating is 28.5%, but, as expected, the percentage is higher among private universities: 47.1%. If you want to find a school’s rating, search at this site. Harvard, for instance, gets a red for its policy on racial harassment (FIRE explains in the last part of the report how certain—but not all—harassment policies violate the courts’ construal of the First Amendment).

 

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Update: A lawsuit has been filed against the University of Texas at Austin. The filing itself is at the link, and the Austin American-Statesman newspaper gives details, including these:

The lawsuit filed in federal court Thursday by Speech First, a national student group that advocates for free speech, names UT President Gregory Fenves and UT System Chancellor James Milliken, among others.

It alleges that UT has “crafted a series of speech codes with numerous vague and overbroad prohibitions on student speech,” including banning verbal harassment that that includes offensive speech, prohibiting rude and uncivil communication via email and on the internet and prohibiting harassment at its University residence halls without clearly defining what constitutes a violation.

The lawsuit also says that the university’s Campus Climate Response Team, which is charged with investigating “bias incidents,” including anything that discriminates against certain racial, religious and political groups, poses a risk to the “unfettered discourse that should be central to higher education.”

Public colleges will increasingly be facing these kinds of lawsuits until they get their houses in order.

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Yellow light. These are schools which have policies “that could be interpreted to suppress speech” or policies that “restrict relatively narrow categories of speech”, like those banning “verbal abuse”, which might or might not violate the First Amendment. In other words, there is sufficient ambiguity in the school’s written policies that they could be used to violate a student’s Constitutional rights. 61.2% of all colleges got a yellow-light rating, making a total of nearly 90% of colleges that have some unacceptable restrictions on speech. Yellow-light schools include Yale University and nearly every branch of the University of California (UCLA is an exception, getting a green light this year). Looking up Yale, for instance, I find that its yellow light comes from several policies, including its inclusion of “unwelcome sexual advances” as part of sexual harassment. FIRE thinks sexual harassment becomes unconstitutional when it is persistent and sufficiently disturbing to impede a student’s educational experience—which I believe is the way the courts construe sexual harassment. For example, propositioning someone a single time, even if it’s unwelcome, should not be construed as harassment.

Green light. These are the “good schools,” the ones that don’t have policies that pose a substantial threat to campus expression. Only 9% of all campuses get this rating, but one is the University of Chicago. Another is my undergraduate alma mater, The College of William and Mary.

Warning (“blue light”). These are schools that, while they profess a commitment to free speech, also “clearly and consistently state that [they hold] a certain set of values above a commitment to free speech.” There are six of these schools: Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, Vassar College, and Yeshiva University. Three of these are explicitly religious schools, and I can guess what values they prioritize above free speech. Looking up Vassar, it seems that it gets this rating for its policy on harassment, hate speech, and “bias response.”

All in all, the news compared to previous years is good. Here’s FIRE’s summary of the results:

1.) The percentage of schools earning an overall “red light”rating in FIRE’s Spotlight database has gone down for the eleventh year in a row, this year to 28.5 percent. This is a nearly four percentage point drop from last year, and is over 45 percentage points lower than the percentage of red light institutions in FIRE’s 2009 report.

2.) The percentage of private universities earning a red light rating went below 50 percent for the first time ever this year, coming in at 47.1 percent.

3.) 61.2 percent of institutions now earn an overall “yellow light” rating. Though less restrictive than red light policies, yellow light policies restrict expression that is protected under First Amendment standards, and invite administrative abuse.

4.) 42 institutions earn FIRE’s overall “green light” rating, up from 35 schools from last year’s report. (Since this year’s report was written, three more universities have earned green light status, bringing the total to 45.) Policies earn a green light rating when they do not seriously threaten protected expression. Only eight institutions earned a green light rating in FIRE’s 2009 report.

5.) Approximately ten percent of institutions surveyed maintain “free speech zone” policies, which limit student demonstrations and other expressive activities to small and/or out-of-the-way areas on campus.

6.) More than 50 university administrations or faculty bodies have now adopted policy statements in support of free speech modeled after the“Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”), released in January 2015. There were 17 such adoptions in the year 2018 alone (since this year’s report was written, three additional schools joined the list).

You can give credit to the faculty and administration for these improvements, I think, as only rarely do I see students themselves pushing for a free-speech policy that would satisfy FIRE and the Chicago Principles (see below). Certainly even my own University of Chicago’s policy, a model for 50 other colleges, was put in place by a faculty committee, while the students seem to rarely argue in favor of free speech. Further, our student newspaper, The Chicago Maroon, cravenly refuses to say anything about free speech. They are too scared of alienating their fellow Authoritarian Leftist students. And they’re a newspaper!

The “discussion” section of the FIRE report is well worth reading, as it has a nice analysis of how college speech codes can comport or conflict with the courts’ interpretation of the First Amendment—something that college students should read, too. There are sections about incitement, harassment, bullying policies, obscenity, charging student organizations more for “security fees” when they invite speakers who might prompt demonstrations (those extra charges are probably illegal at public universities), bias and hate speech policies, prior restraint (e.g., requiring students to register well in advance if they want to demonstrate), and the odious “free speech zone” policies, in which colleges restrict demonstrations to a small (and usually remote) part of campus.

Finally, FIRE gives the welcome news that an increasing number of colleges have adopted the “Chicago Policy,” the University of Chicago’s free-speech guidelines created in 2012. Fifty-three schools have now adopted these policies or ones very similar; you can find the list here.

The lesson: not only should more schools look at their policies to see if they adhere to Constitutional provisions and interpretations, but if they make new policies, those policies should be made by faculty rather than the students. That doesn’t guarantee free speech, of course, for a faculty like that at Evergreen State would never endorse the First Amendment, but, unlike days of yore, college faculty are now far more willing to endorse free speech than today’s generation of students.

16 Comments

  1. CAS
    Posted December 14, 2018 at 9:49 am | Permalink

    Thanks for the info Jerry! One of our state universities has a yellow rating. We’ll see what can be done about that!

  2. Ken Kukec
    Posted December 14, 2018 at 9:50 am | Permalink

    The link to the FIRE report comes back “Page Not Found.”

  3. Ken Kukec
    Posted December 14, 2018 at 10:03 am | Permalink

    For example, propositioning someone a single time, even if it’s unwelcome, should not be construed as harassment.

    It does, however, merit having a drink tossed in the propositioner’s face.

    Or maybe I’m just a throwback to a bygone time.

    • rickflick
      Posted December 14, 2018 at 10:09 am | Permalink

      I wonder if the drink in the face becomes the harassment?

  4. GBJames
    Posted December 14, 2018 at 10:09 am | Permalink

    sub

  5. rickflick
    Posted December 14, 2018 at 10:12 am | Permalink

    The fact that Chicago has 50 imitators says something very good about the school and faculty. At least they must have given the issue some serious thought before reactionaries made their move. Once bad policies are adopted getting them corrected must take a lot of effort.

  6. Posted December 14, 2018 at 10:22 am | Permalink

    Always makes me proud to be a University of Chicago alum.

  7. Ken Kukec
    Posted December 14, 2018 at 10:23 am | Permalink

    There are six of these schools: Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, Vassar College, and Yeshiva University.

    Wow, that’s quite the ecumenical list. 🙂

    • Ken Kukec
      Posted December 14, 2018 at 10:44 am | Permalink

      I count five of ’em as overtly religious. To take ’em in order: Baptist, Mormon, Church of Christ, Catholic, and Jewish. Then there’s Vassar — in its founding, a shrine to High-Church WASPism. 🙂

  8. Randall Schenck
    Posted December 14, 2018 at 10:39 am | Permalink

    I am not sure what exactly some of the schools are attempting to do with the general issue of Sexual Harassment. They might be best served to simple state the general definition provided by the EEOC and refer them to the EEOC material on line. Just throwing out statements such as asking for sexual favors is sexual harassment or making sexual comments to someone is sexual harassment is meaningless. It only shows that they don’t understand sexual harassment well enough to be attempting to spell it out. That is not how to do it and it accomplishes nothing but entanglement with free speech.

  9. Randall Schenck
    Posted December 14, 2018 at 10:54 am | Permalink

    Baylor is also one of those places where lots of scandal seems to follow:
    https://www.cnn.com/2018/12/12/us/baylor-sex-assault-cases-timeline/index.html

  10. Posted December 14, 2018 at 12:00 pm | Permalink

    This is good news.

  11. W.Benson
    Posted December 14, 2018 at 12:56 pm | Permalink

    My Alma Mater of many years ago, although deep South and nominally religious, got a green rating from FIRE without the need of U.Chicago’s free speech guidelines. Just bragging.

    • Posted December 14, 2018 at 4:05 pm | Permalink

      So did mine. Possibly the same one. Go Eagles.


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