Spotlight on Speech Codes 2024

Most U.S. college students attend either a public school that is bound by the First Amendment or a private school that commits in writing to following free speech principles. However, FIRE’s annual review of our Spotlight database of speech codes reveals most schools maintain policies that infringe on free speech. 

Of the 489 schools included in FIRE’s Spotlight database, 98 (20%) earn an overall “red light” rating for maintaining policies that clearly and substantially restrict free speech, and 320 (65.4%) earn an overall “yellow light” rating for maintaining policies that impose vague regulations on expression. Only 63 schools (12.9%) earn an overall “green light” rating for maintaining policies that do not seriously imperil free expression. Eight schools (1.6%) receive a “Warning” rating because they do not promise students free speech rights at all. 

While the percentage of green light schools increased this year, this also marks the second year in a row that the percentage of red light schools increased, reversing a 15-year trend of decreasing percentages of red light schools.

In general, private schools maintain more restrictive speech codes than do public schools: Private schools were significantly less likely to earn green light ratings and more likely to earn yellow or red light ratings than public schools. The main contributor to the red light ratings? Schools maintaining overbroad policies on harassment that put protected speech at risk.

Below, you can learn more about the methodology, major findings, and the most common types of speech codes FIRE found and how to fix them. 

If you’d like to encourage a school you care about to revise its speech codes, FIRE is here to help! For more information, contact: speechcodes@thefire.org.

Methodology

FIRE rated 376 four-year public institutions and 113 private institutions on the extent to which their written regulations on student expression restrict free speech. 

A red light institution maintains at least one policy that both clearly and substantially restricts freedom of speech or bars public access to its speech-related policies by requiring a university login and password for access.

A yellow light institution maintains policies that could too easily be applied to suppress protected speech or maintains policies that, while clearly restricting freedom of speech, restrict relatively narrow categories of speech.

If FIRE finds that a university’s written policies do not seriously threaten student expression, we award it a green light rating. 

When a private university clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech, FIRE gives it a “Warning” rating to alert prospective students and faculty members to this fact. This assessment is based solely on a school’s written regulations and does not take into account its climate for free speech.

Indeed, the speech code ratings do not take into account a university’s “as-applied” violations of student speech rights or other cases of censorship, student- or faculty-led calls for punishment of protected speech, or related incidents and controversies. For a look at the campus climate at top colleges that incorporates such factors, view FIRE’s annual College Free Speech Rankings at: rankings.thefire.org.

Major findings

The percentage of schools that earned an overall red light rating increased for the second time in a row this year, reversing a 15-year trend in which the percentage of red light schools decreased. The percentage went from 19.3% last year to 20% this year, with 15.2% of public schools earning a red light rating compared to 36.3% of private schools. This continued backslide is due, in large part, to schools’ continued maintenance of overbroad policies on harassment that can too easily be applied against protected speech.

65.4% of institutions now earn an overall yellow light rating (69.1% of public schools and 53.1% of private schools).

FIRE was pleased to welcome DePauw University, the Georgia Institute of Technology, Radford University, and the University of Tulsa to the green light list this year, bringing the total number of overall green light schools to an all-time high of 63 (15.2% of public schools and 5.3% of private schools). Unfortunately, Western Colorado University adopted a restrictive harassment policy that earns a yellow light rating, so it no longer maintains an overall green light rating. 

Eight schools, or 1.6%, earn a Warning rating. Six private schools and two public military academies earn this rating for clearly placing other values above free expression rights.

In contrast to restrictive speech codes, 105 university administrations, university systems, or faculty bodies have adopted free speech policy statements modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago, also known as the “Chicago Statement,” actively committing their institutions to upholding freedom of expression. In December 2023, the University of Wyoming adopted a statement titled “Freedom of Expression, Intellectual Freedom, and Constructive Dialogue,” committing to protecting robust, wide-ranging freedom of expression as articulated in the Chicago Statement. It also committed to maintaining institutional neutrality — a principle best articulated by the University of Chicago’s “Report on the University’s Role in Political and Social Action,” or “Kalven Report.”

FIRE anticipates institutions will continue to embrace the ideals of the Chicago Statement in 2024, and we expect an uptick in formal adoptions of institutional neutrality.

Common speech codes and how to fix them

Below are some of the most common types of restrictive speech codes FIRE found while reviewing colleges for this report. “FIRE’s Model Code of Student Conduct” and “Model Speech Policies for College Campuses” webpages provide examples of how to regulate these areas without infringing on protected speech.

FIREs Model Code of Student Conduct

FIREs Model Speech Policies for College Campuses

Harassment and bullying policies

Harassment is not protected by the First Amendment, but schools typically define harassment and bullying so broadly that their policies encompass protected speech. For example, Adams State University defines sexual harassment as “unwelcome conduct that is of a sexual nature or is based on a person’s actual or perceived sex, gender,” or other enumerated category, including “verbal, nonverbal, or physical conduct of a sexual nature.”^[1]

To protect free speech, schools must use the Supreme Court’s standard for peer harassment in the educational setting, defining “harassment” as conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”^[2]

Civility policies

While a university has every right to promote a tolerant and respectful atmosphere on campus, a university that claims to respect free speech must not limit discourse to only the inoffensive and respectful. However, many schools have policies that effectively require compliance with restrictive civility standards. Evergreen State College goes so far as to say, “Civility is not just a word; it must be present in all our interactions.”^[3]

Schools should use clearly aspirational language when discussing civility to avoid creating a chilling effect on free speech.

Bias reporting policies

Most campuses have some form of a “bias incident” reporting system: a mechanism for reporting speech or conduct motivated by bias toward a particular characteristic. While some of these policies exist only to support those impacted by such incidents, most impose vague consequences on those who engage in what is often constitutionally protected expression.

For example, Bates College states that examples of bias incidents include “hate speech,” “sexist jokes,” and “disparaging remarks on social media sites.”^[4] The college explicitly “reserves the right to address bias incidents that do not rise to the level of a policy violation” through actions such as “education and training,” “remedial and supportive actions,” and “other Informal Resolution mechanisms.”^[5]

Instead of arbitrarily punishing students for speech that violates overbroad policies, colleges should make clear their bias reporting teams will not investigate or discipline protected speech and that any participation in informal resolution mechanisms like “education and training” is voluntary.

Protest and demonstrations policies

Universities may enact reasonable, narrowly tailored “time, place, and manner” restrictions that prevent demonstrations from unduly interfering with the educational process.^[6] Far too many schools, however, regulate events on the basis of content or viewpoint or place prior restraints or other unreasonable burdens on public expression.

The University of Massachusetts Dartmouth, for example, tells students they must inform campus police 48 hours in advance of using the university’s sole area for demonstrations.^[7]

Institutions must instead allow students to spontaneously use publicly available, outdoor areas of the campus for public expression. Without the ability to do so, students are prevented from responding to new and unfolding events.

Posting and distribution of materials policies

Universities often unreasonably restrict the posting or distribution of written materials on campus. Kean University, for one, requires students to reserve an area for distributing materials five days in advance of the activity.^[8]

Universities must neither prevent students from spontaneously distributing materials on campus nor require students to seek permission before posting written materials.

Technology usage policies

Universities are no more permitted to infringe on free speech online than on the campus quad. Nonetheless, policies governing online speech are frequently in far worse shape than policies governing in-person speech, often placing impermissible restrictions on the content of the speech or viewpoint of the speaker.

Delaware State University’s policy, for example, bans users of any university technology, including the campus internet, from causing “offense to others” and even from causing “embarrassment” to the university.^[9]

Instead, colleges should only ban speech and conduct that is not protected under First Amendment standards, such as harassment and true threats. 

Notes

[1] Adams State University Student Handbook, ADAMS ST. UNIV. at 13, https://drive.google.com/file/d/0B8wl1ArVquL1YWY5LVVScFJFS00/view?resourcekey=0-koPxPLmeZ2HcZMH-TbRc0A (last visited Dec. 28, 2023).

[2] Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999).

[3] Evergreen’s Social Contract, EVERGREEN ST. UNIV., https://www.evergreen.edu/about/evergreens-social-contract (last visited Dec. 28, 2023).

[4] Policy: Section V, BATES COLLEGE, https://www.bates.edu/here-to-help/policies/equal-opportunity-policy/policy-section-v (last visited Dec. 28, 2023).

[5] Id.

[6] See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

[7] Public Forum Use of University Facilities, UNIV. OF MASSACHUSETTS DARTMOUTH (Aug. 24, 2010), https://www.umassd.edu/policies/active-policy-list/facilities-operations-and-construction/public-forum-use-of-university-facilities.

[8] Distribution of Literature Policy, KEAN UNIV., https://www.kean.edu/offices/policies/distribution-literature-policy (last visited Dec. 28, 2023).

[9] Acceptable Use Policy, DELAWARE ST. UNIV. at 3 (July 11, 2011), available at https://www.desu.edu/sites/flagship/files/document/31/08-07_acceptableusepolicy.pdf.

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