The State of Free Speech on Campus: University of Chicago

Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at the University of Chicago, which FIRE has given a red-light rating for maintaining policies that gravely infringe upon free speech at the university.

Although it is a private university, not legally bound by the First Amendment, the University of Chicago has nonetheless chosen to commit itself to protecting free speech on campus. The university's protest policy, found in the Student Manual, states that

The primary function of a university is to discover and disseminate knowledge by means of research and teaching. To fulfill this function, a free interchange of ideas is necessary not only within the university but also with the larger society. At the University of Chicago, freedom of expression is vital to our shared goal of the pursuit of knowledge.

Despite this commitment, however, and contrary to the notion of the American liberal arts university as "one of the vital centers for the Nation's intellectual life," Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819, 835 (1995), several policies in force at the University of Chicago seriously threaten free and open debate on campus.

The most problematic policy comes from the university's office of Diversity, Civility, and Equity, and that is the policy on responding to so-called "bias incidents." Such incidents are defined as follows:

Bias is a pre-formed negative opinion or attitude toward a group of persons who possess common characteristics, such as skin color, or cultural experiences, such as religion or national origin. Bias incidents involve actions committed against a person or property that are motivated, in whole or in part, by the bias against race, religion, sexual orientation, ethnicity, national origin, ancestry, gender, gender identity, age, or disability.

A related page about reporting bias incidents provides specific examples of bias incidents, including "Remarks perceived as derogatory, made about you by a classmate" and "a message on your whiteboard perceived as derogatory." These examples clearly demonstrate that the university includes protected expression in its definition of "bias incidents"; unlike genuine harassment, which must be severe, pervasive, and objectively offensive, any expression "perceived as derogatory" and based on certain personal characteristics constitutes a "bias incident" at Chicago.

Like so many university hate and bias incident policies and protocols, Chicago's policy does not specify whether bias incidents alone can form the basis for disciplinary action. However, it explicitly states that bias incidents "will be addressed by the Bias Response Team" and encourages reporting of all bias incidents. Given that the definition of a "bias incident" includes protected speech, this means that protected speech is subject to investigation on Chicago's campus. This, in and of itself, has a severe and impermissible chilling effect on free speech, since students will almost certainly wish to avoid the negative educational effects that would result from being subjected to any sort of disciplinary investigation, keeping silent about matters that ought to be freely discussed on a college campus.

Another problematic restriction is found in the university's policy on protests and demonstrations—the very policy that extols the importance of free speech on Chicago's campus! That policy provides that "a request to hold a protest or demonstration should be submitted no later than 48 hours before the start of the event and must be approved by [the student activities office]." There are several serious problems with this policy. First, protests and demonstrations are often spontaneous responses to unfolding events; students wishing to demonstrate in response to an immediate crisis may be deprived of the impact of their message by being forced to wait two days to demonstrate, by which time the events they wished to protest may be in the past. While there may be circumstances under which it is reasonable for the university to require advanced notice of a demonstration—for example, an unusually large rally for which additional security will be necessary—a blanket restriction like the one here unnecessarily restricts free speech on campus. The university will likely argue—as universities often do in response to criticism of policies like this one—that this is merely a "time, place and manner" restriction of the sort permitted under the First Amendment. But universities often vastly overestimate the permissible scope of time, place and manner restrictions. In reality, such restrictions are only permissible "[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest"; in many instances, such as here, the university's restriction on speech is indeed far broader than necessary. Ward v. Rock Against Racism, 491 U.S. 781, 800 (1989).

In addition to the advance reservation requirement, this policy is also problematic in that it requires all demonstrations to be approved by the student activities office without providing any clear criteria by which such requests will be judged. While the office presumably intends to grant approval on a content-neutral basis, this policy still vests an impermissible amount of discretion in university administrators. The university should do away with this prior-approval requirement entirely, but at a bare minimum, the policy must set forth very explicit, content-neutral criteria by which such requests will be judged, and should provide a mechanism for expedited approval of demonstrations that would be burdened by the 48-hour requirement.

The final policy of concern at Chicago is the university's policy regarding posting in its residence halls. According to that policy, "If a posting contains obscene language and/or pictures, or if a posting is deemed to be offensive to a particular group or individual, the posting may be removed." This policy is both overbroad, in that it prohibits protected expression, and vague, in that it is difficult for students to know in advance what might be prohibited, and thus to avoid violating the policy. While true "obscenity" (a term that, legally speaking, refers primarily to hard-core pornography) is not constitutionally protected, "obscene language," which most commonly refers to profanity, is protected by the First Amendment. Indeed, there is a great deal of artistic expression that includes profanity, and this policy could be used to suppress postings advertising those performances (for example, one of the monologues in Eve Ensler's The Vagina Monologues is entitled "Reclaiming Cunt"; this policy would prohibit the posting of a flyer advertising a performance of The Vagina Monologues that included a list of the specific monologues to be performed.) Like the protest policy, this policy also vests too much discretion in the administration to decide what speech is and is not permissible; by prohibiting any postings "deemed offensive to a particular group or individual," the university is giving someone—likely an administrator, or possibly other students—sole discretion to determine what constitutes acceptable speech in the residence halls. This is impermissible as it renders it impossible for students to know, in advance, whether their expression will violate the policy.

These policies, which unduly burden free speech at the University of Chicago, violate the university's commitment to free speech, and should all be revised as soon as possible.

Stay tuned next week for information on the state of free speech at Duke University.