Speech Codes at Private Colleges Debated at 'PolicyMic'

Over at PolicyMic, where I am a contributing writer, Jordan Wolf and Jason Orr are debating the propriety of speech codes on private college campuses. Naturally, I follow this debate with great interest. Wolf in particular makes a number of points in favor of speech codes that are worth discussing, and worth more space than the 900 characters we're permitted for the comments section at PolicyMic; hence I discuss them here.

Wolf states that "private universities can condition attendance on observing a speech code. However, that does not mean it is wise for them to do so." He says later in his article that "[p]rivate colleges are a market like any other, and students have the choice to go elsewhere." Broadly speaking, of course, he is correct. Indeed, private universities can condition attendance on adherence to any number of strict university policies, including speech codes. They also must, as he says, weigh the pros and cons of doing so.

As it happens, whatever the virtues of enacting speech codes to try to shape campus dialogue, the vast majority of colleges decide that they would rather project the image of themselves as bastions of free thought and expression, where no idea is so offensive as to be unutterable, and no opinion so sacred as to be above all scrutiny. Unfortunately, private universities routinely undermine these express promises, often touted in promotional items, handbooks, and related materials, by maintaining speech codes—i.e., policies that prohibit speech that would be protected in society at large. Given the explicit promises of freedom of expression made by the vast majority of private universities, many students are unaware of these speech codes until after they have arrived on campus, or, worse, when they find themselves accused of violating them. Private universities can condition students' attendance on willingness to abide by certain policies, but this is a two-way street: Students should also condition their attendance on their universities' willingness to honor their promises, an obligation in which universities too often fall short. FIRE's most recent report on campus speech codes, for example, shows that 65% of universities, despite making promises of free speech to their students, maintain speech codes that are unconstitutional on a public campus.

On Wolf's comment that "students have the choice to go elsewhere," when it comes to choosing schools without speech codes, I would think this probably works in the opposite direction; with so many schools promising free speech to their students, one would have to take special care and be particularly scrupulous if he or she did want to go to a college that clearly places other values above free speech. Frequently these schools, such as Brigham Young University, are religious in nature, though this isn't always the case; among the schools FIRE lists as "not rated" in our Spotlight database is Worcester Polytechnic Institute, which like the other schools listed as "not rated" in our Spotlight database makes clear statements placing other institutional values above freedom of speech.

Wolf later writes:

Universities, you might say, are supposed to be places of learning and should allow all viewpoints. But what is the view being expressed by people shouting "no means yes" or holding signs with slurs on them? It seems like they are just bullying people; something that is very harmful to the learning environment. [Emphasis added.]

The section I've bolded is, presumably, a reference to the activities of the Delta Kappa Epsilon fraternity at Yale University, which was recently suspended for five years by Yale for the chants of some of the members of its pledge class. Many members of the Yale community found the comments quite offensive and made sure that DKE knew about it, via letters to the editor in the Yale Daily News, counter-protests, and town hall gatherings. Further, Yale itself condemned DKE's activities and made clear to the community that they didn't embody Yale's values. DKE profusely apologized for the offense it caused.  The passionate outpouring from the community gives the lie to the notion that the presence of such chants uttered by some categorically intimidates others into silence and creates an environment so hostile and uneven that it must be dealt with administratively. Yale College Dean Mary Miller's letter to the community notifying it of DKE's suspension stated that DKE "had threatened and intimidated others, in violation of the Undergraduate Regulations of Yale College as they pertain to ‘harassment, coercion or intimidation' and ‘imperiling the integrity and values of the University community." Yet all evidence shows that the incident galvanized the community to respond constructively—which shows that the values supposedly under threat were very much intact.

We frequently say at FIRE that if a student manages to complete a four-year college education without ever being offended, they should ask their college for their money back. An environment that could actually offend nobody likely couldn't exist even at colleges with the strictest speech codes. Colleges that indulge students who complain about offensive expression or about ideas with which they disagree are creating unprepared citizens who will be unable, or unwilling, to cope with adversity once they graduate. Campus environments that truly welcome free speech build elements of character crucial for participating in a modern liberal democracy, and we at FIRE aren't the only ones who think so. 

I think that Wolf hit on the solution to many of the problems addressed here, though he may have underestimated its power. Regarding how he personally would handle offensive encounters, Wolf writes:

My responses in these situations are, to me, basic expressions of non-tolerance for hateful ideologies. I am not talking about rights or broader issues of political correctness in our culture; I just think common decency demands not tolerating acts of overt racism when they are committed in front of you.

If one thinks of "common decency" as the type of thing to be located and sorted out in the marketplace of ideas, then there is ample evidence that it works remarkably well in allowing campuses to respond to disturbing incidents. As Jason Orr writes in his response, "[u]nworthy ideas are quickly countered and dismissed by brighter minds." Without the need for speech codes, students have all kinds of effective ways to communicate their view of ideas they don't like. Particularly creative examples abounded from UCLA's reaction to the "Asians in the Library" video, referenced by Orr (though I'll note that amidst the exchange of "bad" speech with counter-speech, UCLA opened an investigation of the student's unquestionably protected video).

The point stands that private universities may impose speech codes if they wish to express certain institutional values or create a certain identity for their institution. The colleges that do so, however, because they fear their students simply couldn't cope without them vastly underestimate their students' abilities.