Now That It’s Being Sued, ‘Red Light’ Columbia Cozies Up to Free Speech

In an ironic twist, Columbia University—long branded a “red light” institution by FIRE for policies that restrict free speech on campus—asked a federal judge to dismiss a high-profile Title IX lawsuit against the university on Friday, invoking the First Amendment.

Columbia cited its deep commitment to the ideals of free speech in arguing it could not have stopped then-student Emma Sulkowicz from publicly accusing plaintiff Paul Nungesser of being a serial rapist and then carrying her mattress around campus in a for-credit act of performance art. Nungesser said Columbia’s failure to intervene on his behalf amounted to university-sanctioned, gender-based harassment that made him a campus pariah.  

“[T]he University by its nature is dedicated to the free expression of ideas,” Columbia wrote in its motion to dismiss Nungesser’s gender-discrimination suit, which was filed in April, citing a “cherished tradition of vigorous, even raucous, debate” on campus that precluded it from silencing Sulkowicz. Columbia further asserts:

The core of his Complaint appears to be Plaintiff’s allegation that the University should have prevented Ms. Sulkowicz from carrying a mattress around campus as part of her protests. However, at colleges and universities like Columbia the “atmosphere of speculation, experiment, and creation is essential to the quality of higher education.” McCauley v. Univ. of the Virgin Islands, 618 F.3d 232, 243 (3d Cir. 2010).

Columbia writes in its motion that while it is “a private institution...not subject to the Constitutional provisions on free speech,...content-based restrictions [on student speech] are antithetical to the free expression of ideas to which Columbia—and every other great university—is committed.”

Columbia also declared that it must “be mindful of the free speech rights of its students,” that “proscriptions affecting speech and expression must be implemented carefully,” and “that some subjectively offensive speech must be tolerated.”

We at FIRE couldn’t agree more. That’s why we have questioned Columbia’s numerous speech codes, which impose the very kinds of content-based restrictions on student speech that the university now decries.

Foremost among these codes is a “red light” policy stating that “No User of University email may take any of the following actions: … Send obscene, harassing, offensive or other unwelcome messages.” Perhaps if Nungesser wishes to pursue further charges against Sulkowicz, he should focus not on the art project accusing him of rape that made national news, but on whether Sulkowicz ever said anything “offensive” or “unwelcome” over email. Because Columbia is apparently perfectly ready to crack down on that kind of expression, notwithstanding its profession to a judge about how it is so careful to tolerate offensive speech.

Columbia also has three “yellow light” policies related to “gender-based misconduct,” “acts of bias and hate,” and “discriminatory harassment,” all of which FIRE has determined to be unacceptably vague and prone to administrative abuse.

Speaking of administrative abuse, FIRE has intervened in debacle after debacle at Columbia. From the Law School to its Teachers College to the Hockey Club, Columbia has spent years demonstrating its blatant lack of respect for free expression. Here are some examples:

• 2000: Columbia Law School censored a professor’s exam question that administrators said contributed to a “hostile environment.” After intervention from FIRE, it still took the university more than a year to admit the exam was, and always had been, protected by academic freedom.
• 2005: Questions were raised over Columbia’s “honesty and consistency” regarding academic freedom in the wake of a controversy over alleged anti-Israel bias in the university’s Middle East and Asian Languages and Cultures (MEALAC) department.
• 2006: Administrators suspended the Men’s Ice Hockey Club for allegedly offensive language in a recruiting flier. While the club was eventually reinstated after public outcry and help from FIRE, team members were made to apologize and attend mandatory training and suffered a year of probation. In what might be described as the hockey equivalent of punting, the school blamed the controversy on a miscommunication.
• 2006: The university’s Teachers College required students to publicly commit themselves to the ideals of “Respect for Diversity and Commitment to Social Justice” in violation of students’ freedom of conscience. While administrators said the policy would be reevaluated in the “near future,” that promise was made nearly a decade ago. FIRE has yet to see any changes.

Thus, the final irony is Columbia’s statement in the Nungesser case that “[our] own policies embody” the highest ideals of free speech. Yes, Columbia promises exactly that in its policy commitments to free expression. But other Columbia policies, and certainly its practices, give the lie to this promise. If what Columbia said in its court filing was true, nobody would be happier about it than FIRE—but that’s simply not the reality at Columbia right now, nor has it been for many years.