Liberty University, Free Speech, and the Private University
June 3, 2009
Since Liberty University decided recently to derecognize its chapter of the College Democrats because it believed the group's "parent organization stands against the moral principles" of the university founded by Jerry Falwell, we've been getting a lot of mail and questions about our stance on the issue. Despite the fact that we've made our position on private universities very clear in the decade since our founding and have covered the subject both in our Guides and, most recently, in Robert's blog post last week about Liberty, it appears that some people are not understanding us. Therefore, I am going to try to explain this in as straightforward a manner as possible.
Public colleges are bound by the First Amendment. Therefore they must provide their faculty and students with robust free speech rights. Private colleges are not bound by the First Amendment and therefore are not obligated to provide freedom of speech. Indeed, the First Amendment guarantees freedom of association to citizens, so we are actually free to establish institutions of higher learning that promise virtually no speech rights and no academic freedom if we so choose. Accordingly, individuals also have the right to choose to join these institutions and voluntarily relinquish a great number of their rights. Fraternities are a prime example of institutions at public colleges in which inductees have usually agreed to surrender certain rights. It is the same with college athletics, military academies, theological seminaries, and even some professions like my own: law.
With this being the case, people ask, why does FIRE fight so many private and even religious colleges? Doesn't that put FIRE at odds with this crucial right to freedom of association? The resolution to this apparent conflict is, in fact, simple. The overwhelming majority of private colleges represent themselves as citadels of freedom, free expression, academic freedom, debate, and candor. Yale, Harvard, Stanford, Brandeis, and virtually all the rest of our nation's most prestigious universities make extensive promises of free speech in their promotional literature, in their handbooks, in their contracts with professors, and in their presentations to prospective students, donors, and alumni. Many colleges have raised literally billions of dollars and attracted the best and brightest students by presenting themselves as epicenters of open discourse and discussion. It is therefore fraud of the highest order for these schools to induce students to attend based on promises of the utmost freedom and then deliver repression, censorship, and viewpoint discrimination. The Constitution protects the right of freedom of association. It does not protect the right to defraud, lie, fraudulently induce, and otherwise misrepresent an institution in order to trick people into sending their children, attending, or donating to a college. That's why FIRE battles with private colleges that promise freedom of speech and then deliver censorship.
There are, however, a handful of colleges that do not promise freedom of speech or basic rights. Indeed, these schools often exist precisely to provide a more restrictive campus environment then you would see at any public college or the overwhelming majority of private colleges. Anyone who has heard me give a speech over the last two or three years knows that my favorite two examples of schools like this are Brigham Young University and, you guessed it, Liberty University.
Originally, I thought BYU's policies were likely the clearest of any school I was familiar with in notifying students that they should be prepared to give up the rights they otherwise would enjoy at a public college. Then I discovered Jerry Falwell's Liberty University, which—just for a start—actually requires students to sign a contract recognizing that they will be relinquishing many of their most basic rights in order to attend. Liberty also forbids, among many other things, the viewing of R-rated movies in its residence halls. Music and video games that run counter to Liberty's standards of morality as informed by the school's reading of the Bible are similarly prohibited. Liberty also forbids female students from wearing two-piece bathing suits, judges any dating behavior beyond handholding as inappropriate, and places the bedrooms of opposite-sex students (whether on- or off-campus) off limits entirely. Students are taught to "respect authority," are trained as "visionary champions for Christ," and are required to attend convocation or chapel three times a week. As Robert noted in his blog entry from last week, the "About Liberty" section on the school's website advertises Liberty as "distinctive" for maintaining
An uncompromising doctrinal statement, based upon an inerrant Bible, a Christian worldview beginning with belief in biblical Creationism, an eschatological belief in the pre-millennial, pre-tribulational coming of Christ for all of His Church, dedication to world evangelization, an absolute repudiation of "political correctness," a strong commitment to political conservatism, total rejection of socialism, and firm support for America's economic system of free enterprise.
Based on these clearly enunciated policies and the contract, time and time again I have used Liberty University as an example of a university that no one could attend not knowing that they were giving up an extraordinary number of rights. It is not plausible to think that anyone could read the contract that Liberty University requires applicants to sign and say "Gosh, I had no idea the university Jerry Falwell founded was so restrictive!" See, for example, Section 6, titled "Agreement," which reads:
I am applying for admission to Liberty University. I am familiar with the doctrine, standards and programs of the University as stated in The Liberty Way, found on Liberty's website at www.liberty.edu/studentaffairs. I am prepared to abide by the codes of conduct and rules and regulations of the University set forth therein. I certify that all of the information given in this application is complete and accurate to the best of my knowledge.
Just below the signature line, in case an applicant had somehow reached this point by accident, is the bolded, italicized statement: "Liberty University's mission is to produce Christ-centered men and women with the values, knowledge, and skills required to impact tomorrow's world." Signing this and not realizing that one had agreed to live according to a very particular worldview would be like someone joining the military and then being shocked that they could not take afternoons off whenever they felt like it. It is Liberty University's right to form a community around its stated beliefs and values—even if those values do not include free speech. Likewise, students have the right to agree not to engage in certain behaviors or express certain opinions in order to attend this very restrictive religious college. That is how freedom of association works—indeed, that is how freedom of association should work.
Frustratingly, I have watched many very intelligent people get very simplistic when the issue of private colleges comes up. Either they think that all private colleges should be allowed to do whatever they want no matter what they promise, or they think that it doesn't matter and that First Amendment standards should apply even to schools that make it exceedingly clear that they place other values on a higher level than free expression. Both positions are wrong. I would not have agreed to work for FIRE if it did not already have such a principled way to recognize the importance of freedom of association while still defending freedom of speech at the overwhelming majority of colleges.
I know that some don't trust this system to work. They ask: "Is FIRE saying that all private universities in the country could one day wake up and decide that they don't promise free speech anymore?" Actually, yes, that is what FIRE is saying. But here's the thing that people miss: The market for highly restricted colleges is extremely small. How many people want to go to a college that promises no free speech and no academic freedom? Who wants to teach at a college that promises no free speech and no academic freedom? Such people are out there, but they are a very small percentage of the total number of students and scholars. The overwhelming majority of colleges promise free speech because they must do so if they wish to attract most serious students and scholars. Our society, in essence, demands institutions of higher learning that guarantee these freedoms.
Indeed, it is often only the very religious who wish to go to very religiously restrictive colleges (imagine that!) and it's their right to do so. To illustrate the small size of this market, consider this: of the 364 colleges and universities rated in our Spotlight database of speech codes, only eight—yes, eight!—promise so few rights that we do not even rate them. Those institutions are Bard College, Baylor University, Brigham Young University, Pepperdine University, the United States Military Academy, the United States Naval Academy, Worcester Polytechnic Institute, and Yeshiva University. (Liberty University is not part of our Spotlight database at this time, but it would also not be rated.) As you can see, contrary to the assertions of some of our critics, these schools include deeply religious schools, a science and engineering-heavy institution, two military academies, and even one well-known secular liberal arts college.
Imagine what might happen if Yale decided tomorrow that it would banish any mention of freedom of speech from its policies and announce that free expression was henceforth no longer an important value at Yale. Faculty members would leave, donors would demand their money back, students would drop out, prospective students would flock to Harvard and Princeton, and generally the school would suffer a massive collapse of its reputation and goodwill. On the other hand, the people who created Liberty University and who attend Liberty University did so precisely because of the restrictive environment that the school offers, and Liberty goes out of its way to let people know the environment they are signing up for if they choose to attend. Again, there is a very limited market for this environment, but America is a pluralistic and diverse society. Our great nation has room for the comparative handful of schools that decide, like the Pilgrims did, to create their own strict, puritanical community, even if most Americans would find it far too repressive.
I believe that the contract theory of rights at private schools to which FIRE adheres, outlined above, is the only effective way anyone has come up with to acknowledge the rights of private colleges while maximizing free speech.
Nonetheless, a few people have blown up at us, claiming that we are hypocrites for our refusal to fight Liberty University for not delivering rights that the school was very clear about not promising in the first place. Another claim is that we somehow let religious universities off the hook. As someone who has been adamantly nonreligious since I was in the seventh grade, I find my supposed favoring of religious institutions quite amusing. It is true that religious universities do seem more likely to be attracted to a model that promises fewer rights than other universities, but many religious colleges do promise freedom of speech. When they do, FIRE fights them the same way we would any public college. For example, we fought successfully at Catholic University of America in order to get it to recognize a chapter of the NAACP because of the college's promise of freedom of association. FIRE has similarly gone to the mat for wronged students and faculty at Gonzaga University, Marquette University, and DePaul University.
We have also been accused of somehow making up this policy as a way of avoiding a fight with Liberty University. Sorry—this has actually been FIRE policy since the beginning. Check out our Guides, our letter to Catholic University, and former FIRE employee Chris Perez's excellent blog post on the subject from several years ago.
Finally, we are hearing some critics fall back on the old chestnut that this policy reveals FIRE as a partisan organization. I find this argument tiresome. As I've explained before, FIRE is not a partisan organization. Indeed, it is the most uniquely nonpartisan organization I have ever heard of. You can read more from me on this topic in this blog that I wrote in response to an accusation several years ago. Since that time we have also defended the rights of a student newspaper editor at Colorado State University who was investigated over an editorial titled "Taser this...F*** BUSH"; a student group at the University of Colorado charged exorbitant security fees for an event featuring Bill Ayers and Ward Churchill; and the University of Oklahoma itself when conservative legislators began to investigate it for bringing Richard Dawkins to campus. In person, I often challenge FIRE skeptics to go on Fox News and defend Ward Churchill, as I have done, or try debating Pat Buchanan on his own show about free speech zones, or go on MSNBC to defend the free speech rights of Sami Al-Arian.
If FIRE is doing its job right, we know we will get angry letters from a lot of people. That's par for the course when it comes to First Amendment advocacy. And I do understand that people who don't spend all day thinking about student and faculty rights may not quite get FIRE's position on this issue. But before you hit "send" on your angry e-mail to FIRE, I ask you to read what we've written, think about it, and look at the facts. If you still disagree with us, we can accept that. But before you write us, please do make sure you understand our position.