How to Fight for Free Speech on Our 'Sensitive' Campuses
July 28, 2010
by Daphne Patai
Minding the Campus
About fifty undergraduates from around the country gathered outside of Philadelphia, on the campus of Bryn Mawr College, between July 15 and 17th, to discuss the struggle for free speech on American campuses. The event was the third annual Campus Freedom Network (CFN) conference organized by FIRE, the Foundation for Individual Rights in Education.
Teaching as I do at the University of Massachusetts flagship campus in Amherst, affectionately known by some as the People's Republic of Amherst, I considered it a rare treat to encounter in one place so many impassioned and curious young people eager to defend their First Amendment rights against the encroachment of overzealous college administrators and others. Horror stories were recounted (about which more anon), but laughter, outrage, smart comebacks, and strategizing were in ample supply.
Since FIRE's founding in 1999 by Alan Charles Kors and Harvey A. Silverglate, co-authors of the 1998 book The Shadow University: The Betrayal of Liberty on America's Campuses, the non-partisan non-profit organization has battled speech codes and other assaults on First Amendment rights on campuses from coast to coast. More interested in suasion than in litigation (which, when necessary, is done by FIRE's many lawyer friends and allies), FIRE is by now a well-established outfit with headquarters in Philadelphia, a satellite office in Manhattan, and a total staff of 17. It has been remarkably successful in bringing sunlight and good sense to blinkered administrators, as can readily be attested by a glance at its website, which archives the organization's activities, including its blog, The Torch, its constantly growing list of schools whose speech codes and policies FIRE has rigorously analyzed and classified, and offers free downloads of its five short "Guides to Student Rights on Campus" -- each book focusing on one crucial area: free speech, religious freedom, due process, student fees, and first-year orientation/thought reform efforts on campus
But despite FIRE's many successes, the abuse of First Amendment rights on campuses nationwide continues. Using reason, logic, the law, and humor, FIRE 's "Speech Code of the Month" features particularly egregious cases on its website. In a sublime irony, Bryn Mawr College had received this honor in May 2010, as a result of a sweeping harassment policy that prohibited "negative or offensive comments, jokes, or suggestions" on an array of subjects. As FIRE's Director of Speech Code Research, lawyer Samantha Harris, noted, Bryn Mawr, like many other private colleges, advertises itself as offering students "a climate of open and vigorous debate"-- a promise clearly incompatible with its broad policy of threatening disciplinary action against students who engaged in controversial speech. As a result of FIRE's communication with Bryn Mawr president Jane McAuliffe in early June, the college revised its code to conform with current law, adding language clarifying that the offending behavior had to be "severe, offensive, and occur repeatedly, unless a single instance is so severe that it warrants immediate action" (see here).
While routinely fighting such battles, Harvey Silverglate, FIRE co-founder and current chairman of the Board of Directors, has long argued that in addition to its case-by-case approach, FIRE needs to make deeper efforts to change the campus culture of political correctness, itself the driving force behind the decline of free speech on campus. As a result, in 2008 FIRE inaugurated a yearly conference for college students -- those in the trenches who are fighting these battles at their own colleges and universities, often with little overt support from their cowering colleagues. At the moment, the Campus Freedom Network has about 4,000 members, but the yearly conference is intentionally kept small, so that dialogue is encouraged and information shared in a more personal setting. Unable to attend the conference in person, Silverglate gave a live-streamed address to the conference. He noted that the number of campus administrators continues steadily to rise, above all the number of campus PR people hired precisely to control the message, the better to mislead the public whose tuition dollars schools constantly compete for. Silverglate then discussed two recent cases of the degradation of modern academic culture, both involving prestigious private schools, Harvard and Yale, which, like Bryn Mawr, advertise their commitment to free expression while censoring it in practice. For their efforts, Silverglate bestowed on them the 13th annual Muzzle Awards (see his June 30, 2010 column in the Boston Phoenix) .
FIRE president Greg Lukianoff followed with an analysis of how speech codes around the country have created a misunderstanding of the law. One result is that many students believe that "hate" or "offensive" speech is illegal. They fail to realize that not only must there be no censorship of speech, but that people have to be able to defend their beliefs, regardless of whether those beliefs are currently popular or despised. The aim of higher education, Lukianoff repeated, is not to train people to be nice or to be comfortable, and the chilling effect of speech codes (usually thinly disguised these days as "harassment" policies) is in itself a violation of protected speech.
A subsequent panel discussion explored the philosophical and practical underpinnings of academic liberty, ranging from the ideas of John Stuart Mill to the importance of studying rhetoric and understanding how to argue effectively. Will Creeley, FIRE's director of Legal and Public Advocacy, then provided an overview of more than fifty years of American legislation, highlighting key legal decisions affecting free expression at public universities. Despite the clear tendency of courts to throw out campus policies restricting speech, colleges and universities today continue to disregard these precedents, as ignorant General Counsel insist on controlling certain speech, often in the name of misguided notions of "civility" and "social justice." But perhaps a more powerful motive for General Counsel to advise colleges to enact speech codes is the lawyers' obsession with "risk reduction." They argue that since "offended" students are more likely to sue than are students whose First Amendment rights are denied, "risk reduction" implies that a college comes out ahead financially if it prevents the sort of situations from arising that might make the thin-skinned sue for "harassment." Hence college administrators' uncritical embrace of censorship on campus is a reasonable approach -- if finances are the preeminent concern. Of course, if this analysis is correct, one possible response from campus defenders of the First Amendment is to generate more lawsuits whenever their rights are illegally abridged, thus equalizing the college's risks and perhaps leading to more appropriate policies.
FIRE's Samantha Harris then presented a concise explanation of how students can learn when their First Amendment rights are being violated, and how they can find and identify speech codes in their various guises (whether as "free speech zones," policies regarding posters, gatherings, internet use, expressions of bias, incivility, residence hall regulations, and so on) -- which often engage explicitly in content-based discrimination, a clear violation of students' free-speech rights. Harris pointed out that merely labeling some language "hate speech" in no way makes that speech illegal unless it falls under one of the specific categories that restrict First Amendment rights (for example, true threats, incitement to imminent violence and "content-neutral" rules). A hands-on series of small workshops on speech codes concluded the afternoon sessions.
A highlight of this year's CFN conference was the keynote address on July 16th delivered by Jonathan Rauch, author of the important early-warning volume Kindly Inquisitors (1993). As a counterpoint to the conference's many workshops and sessions about the specifics of First Amendment law and how to defend it, Rauch offered an impassioned philosophical and pragmatic defense of freedom of speech and of inquiry, regardless of the discomfort or offense these might cause. It's not just that curtailment of free speech on campus, certainly in public universities and in many private ones as well, is an infringement of basic rights, he argued. Equally important is recognition that without free speech the very possibility of inquiry and exploration declines and progress in knowledge is endangered. Quoting Karl Popper, Rauch explained that Liberal Science (Rauch's term) -- that is, the method of trial and error, by which falsification leads to improved hypotheses -- "consists in letting our hypotheses die in our stead." In other words, a basic principle of the pursuit of knowledge -- which must rely on free inquiry rather than sensitivity training -- is that we kill our hypotheses rather than each other. And despite the current climate in academe, progress, Rauch insisted, does occur as vigorous debate causes bad ideas to give way to better ones. Speaking as a newly-married gay man, he said, he cannot deny that freely pursued arguments exposing unjustified beliefs and sheer prejudice can indeed lead to important social change. For his trouble, Rauch was treated to a standing ovation.
On the conference's final day, following a workshop on video and technology led by Joe Stramowski, FIRE's Sweidy Stata Video Fellow, and Luke Sheehan, indefatigable director of FIRE's Campus Freedom Network, three former students recounted their thoroughly outrageous experiences of censorship and ostracism at three different schools. Chris Lee, an alumnus of Washington State University, told the story of his 2005 play, Passion of the Musical, a parody of Mel Gibson's controversial film. Designed to offend absolutely everyone, the play was disrupted by angry students (paid for and trained by the university administration!) shouting threats of physical violence, while campus security stood by and refused to act (see the video here), and indeed the president of the university himself praised the mob censorship as a "very responsible" exercise of free speech . With the help of FIRE, Chris Lee eventually got the university to apologize and. more important, update its student handbook, so that disrupting a show is not allowed. This required some revision of the administration's belief that it was the protestors alone whose free speech needed protection (see http://www.thefire.org/case/683.html).
Michele Kerr encountered similar double standards about whose speech a school was prepared to defend. In her mid-40s she decided to go back to school and obtain a Master's degree in teaching. Her extremely high GRE scores and excellent qualifications led to her acceptance into Stanfordâ€TMs School of Education, but when the school became aware that Kerr did not share their progressive views (views that more and more education programs now feel free or even in some weird sense obliged to prescribe to their students), they repeatedly tried to get rid of her. She was, they said, "unsuited for the practice of teaching." The evidence? After all, she supported "tracking", i.e., honors classes, which schools devoted to "progressive education" consider undesirable, and she even dared to have a blog in which she expressed her views (see here).
Finally, Braum Katz spoke of his work at the College of William and Mary. After interning in FIRE's Philadelphia office three summers ago, Katz returned to school determined to establish a student government position specifically dedicated to protecting and defending students' speech rights. Through laborious efforts at building alliances and outwitting his opponents, his efforts resulted in an extensive revision of the college's handbook (see here), and FIRE changed the school's classification from "red light" -- the designation FIRE bestows on schools having at least one policy that clearly and substantially restricts freedom of speech -- to "green," i.e., a school that has no policy that seriously imperils free speech (see here).
All three speakers made it abundantly clear that their stories were far more amusing in the telling than they had been as they unfolded. A tremendous amount of creativity, energy, resourcefulness, and outside help was necessary to deal with campus censors and vigilantes, whether in the form of administrators or fellow students. As Katz and his fellow panelists argued: Always remember that red-light schools are violating the law; look carefully at their codes of conduct and other policies, and consider rewriting these for them. Highlight the absurd results of existing speech codes (e.g., the ban on anonymous literature at Katz's college would have made it impossible for Thomas Paine to distribute his famous 1776 pamphlet "Common Sense"). Build coalitions. Work with student government. Find allies in the campus media. Realize that journalists are your friends. Make your efforts visible. Write Op Eds. Know your audience. Argue with each constituency in terms it will understand: To administrators: help them achieve what ought to be their true goals; recognize that they borrow policies from other schools and often don't even understand the implications of those policies; point out legal liabilities. To students: stress that they're too smart for these codes and that their interests are not truly served by them. Use the FIOA and FERPA. Keep good notes. Go multimedia. Use blogs. Get a domain name. Be flexible. As Kerr mentioned, when Stanford made her shut down her blog, instead of wasting energy fighting them on this particular issue -- though she knew she would win since they had no policy against blogging -- she simply changed the blog name from "Surviving Stanford" to "Hating Dewey." Stanford continued to seek access to her password-protected blog. She refused to grant it to them. Follow up with the administration; be firm but unrelenting in your conviction that these are your rights. Especially at public universities, know that your victory is inevitable.
After this remarkable and amusing session -- impossible to know whether to laugh or cry -- the conference closed with another set of individual action workshops on free speech and how to fight for it on campus.
Those wishing to know more can find FIRE's five brief but indispensable Guides to Students' Rights on Campus at FIRE's website: http://www.thefire.org/guides/.