Colleges Rush to Violate Free Speech, Due Process in Response to Speech Controversies

PHILADELPHIA, April 9, 2015—In the wake of the University of Oklahoma’s unconstitutional decision to summarily expel students involved in a racist fraternity chant, colleges and universities across the country are in a “race to the bottom” to violate the rights of students at the center of campus controversies involving speech deemed offensive, heedless of either context or the precedent set by censoring unpopular speech.

Last week, the University of South Carolina (USC) suspended a student who used a racial slur when writing a list of reasons “why USC WiFi blows” on a white board. Shortly after a photo of the student writing the list was posted to social media, USC President Harris Pastides issued a statement saying the university had “taken appropriate actions to suspend [the] student and begin code of conduct investigations”—displaying a “sentence first, verdict afterwards” mentality straight out of Alice in Wonderland.

Last month, Bucknell University in Pennsylvania expelled three students who allegedly made racist comments during a campus radio broadcast. Administrators failed to provide a recording or transcript of the statements, instead arguing that “context really doesn’t matter once you see what was said”—a false argument that raises more questions than it answers. Bucknell invoked “administrative action” to expel the students for supposedly violating the student code of conduct, again with no sign of any hearing.

“Colleges have seized on the University of Oklahoma’s unconstitutional actions as a signal that they have an ‘all clear’ to toss free speech and basic fairness out of the window,” said Robert Shibley, Executive Director of the Foundation for Individual Rights in Education (FIRE). “While these punishments might earn temporary plaudits from the press and public, neutering freedom of speech will look a whole lot less clever when the censors’ own unpopular opinions inevitably come under attack.”

Other schools have also recently taken draconian measures to deal with offensive speech. On March 18, the University of Mary Washington in Virginia dissolved its men’s rugby team and mandated sexual assault training for all 46 of its members for a bawdy song sung by a few members at an off-campus party. On April 2, Duke University announced that a student alleged to have hung a noose on campus was “no longer on campus” and was to be “subject to Duke’s student conduct process,” and that “potential criminal violations” were being explored. However, the university has shared neither the motive for the display nor the identity of the student. (A similar incident at Duke in 1997 turned out to be a protest against racism by two black undergraduates.) Connecticut College canceled classes on March 30 and required all students to attend diversity sessions in response to racist bathroom graffiti—vandalism now thought to have been the responsibility of a local man who was not a member of the campus community.

Earlier this week, FIRE wrote to USC, Bucknell, and Duke requesting that they break their silence on the relevant details of the respective incidents so that students and the public can make up their own minds about the expression at issue, rather than being told what to believe by campus authorities.

Thankfully, not all colleges have fully jettisoned student rights. Bucking the trend, University of Maryland President Wallace D. Loh announced on April 1 that a recently publicized email containing racial slurs sent by a campus fraternity member last year constituted protected speech. “[T]his private email, while hateful and reprehensible, did not violate University policies and is protected by the First Amendment,” wrote Loh in an email to the campus community.

Since its founding in 1999, FIRE has repeatedly reminded colleges that the vast majority of speech deemed racist, sexist, or otherwise offensive is protected by the First Amendment on public university campuses. As the Supreme Court held in 1973, “The mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name of ‘conventions of decency.’” And if a private college promises its students and faculty free speech rights—as the vast majority of them do, including Duke and Bucknell—such speech should not be the basis for discipline.

“Our nation has long recognized that the best way to fight ‘bad’ speech is with more speech, not censorship,” said FIRE President and CEO Greg Lukianoff. “Yet increasingly we’re seeing calls from campus communities for freedom from speech, not freedom of speech, and college administrators are far too eager to comply. This is a dangerous problem for institutions that are supposed to serve as ‘the marketplace of ideas’—and one for which administrators might ultimately have to answer in court.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process, and freedom of conscience at our nation’s colleges and universities. FIRE’s efforts to preserve liberty on campuses across America can be viewed at thefire.org.

CONTACT:

Nico Perrino, Associate Director of Communications, FIRE: 215-717-3473; nico@thefire.org