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April 21, 2013

6 Ways to Defeat the Campus Censors

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By Greg Lukianoff and Robert Shibley                          

It's no longer a matter of much debate that America's college campuses are not the beacons of free and open discussion  they were intended to be. In its 14 years of existence, our organization, the Foundation for Individual Rights in Education (FIRE), has documented hundreds of cases of gross abuses of students' and faculty members' fundamental rights. More than sixty percent of America's largest and most prestigious colleges have speech codes that are either unconstitutional (at public universities) or directly contradict promises of free speech (at private universities).

The two authors of this piece come from different political and personal perspectives. One is a liberal and an atheist (Lukianoff), the other a conservative evangelical Christian (Shibley). Our combined decades of work as president and senior vice president  of FIRE have convinced us that the groupthink and the pressure to conform, be silent, or talk solely to those with whom you already agree  that is fostered by the culture and rules of the modern campus is destructive to students, our educational system, and our society as a whole.


So what can people who recognize the importance of free speech on campus do about it? There are a number of possible measures that might be taken. FIRE is already doing some of them; others would require new large-scale and ambitious initiatives. Some are cultural. Some are political or legal. None are the silver bullet that a lot of us might like, and some have tradeoffs that might make them less desirable. Let's take a look at a few of them.

 

1. Tie Speech Protections to Federal Funding.


Margaret Hagen, a professor at Boston University, recently proposed that Congress  use the power of the purse to force campuses to respect free speech. This would be a statutory effort that would tie the receipt of government funding to enacting policies and practices that respect free speech, much as colleges that receive government funding must provide access to military recruiters. Given our college funding system, this would apply to nearly every college in America, public or private, since "federal funding" includes not just direct subsidies (received mostly by state schools) but also research grants as well as student funds like Pell grants and Stafford loans. Virtually every college in the U.S. gets federal funding from at least one of these sources--indeed, FIRE only knows of three that don't, out of the thousands of American colleges: Hillsdale College, Grove City College, and the College of the Ozarks. (There are probably more, but not many.)


The advantage of this plan is that with the stroke of a pen, Congress and the President could make every college in America sit up and take notice about free speech issues. Lawyers would be hired to ensure compliance and rewrite speech-restrictive policies that suddenly look a lot more expensive.. Vague genuflections towards free speech would suddenly have real meaning. But there are philosophical problems with this approach. First, it would undoubtedly mean more government intervention in college administration.


Second, this type of legislation could lead to unjustified complacency about rights on college campuses. After all, public colleges are already required to follow the Constitution and yet most don't. Putting federal funding at risk would certainly give them greater incentive to do so, and give private colleges actual incentive to do so, but enforcement would rely on federal bureaucrats being willing to actually cut funding to schools that fail to comply. This might be politically impossible at big schools like Ohio State or prestigious schools like Harvard. Colleges are likely to know this and may be willing to take that gamble. Colleges are in a similar situation with regard to compliance with the Federal Educational Rights and Privacy Act, or FERPA (a deeply flawed law, but that is for another column). Noncompliance is unlawful and can be punished through the loss of federal funds, but this has never happened in the 39 years since its enactment, despite many abuses.


Third, religious schools or explicitly ideological schools would lose the ability they now have to regulate expression in keeping with their missions. FIRE recognizes the right of private schools to put other values above free speech as long as they are transparent about the rules before students enroll. Few actually do--out of the more than 400 schools FIRE rates, only nine explicitly place other values above free speech, and two of them are military academies. But a free, pluralistic society should allow the ability to establish and join private organizations that have their own set of values that may not agree with the mainstream. Imposing First Amendment standards on all institutions via legislation may be the quickest of all fixes, but it comes with some significant drawbacks.

 

2. Legally End the Slippery Debate about What "Harassment" Really Means.


Since the 1980s, the most common form of campus speech codes has been wildly overbroad or vague  harassment codes. Poorly written or purposely broad harassment policies can chill or silence huge swaths of protected speech. For example, Auburn University at Montgomery bans "jokes" about protected characteristics, as well as "making judgments," thus managing to ban with a single policy both Chris Rock and Sandra Day O'Connor.


The Supreme Court has actually provided the solution to this problem, if only schools would listen. It comes from Justice O'Connor's majority decision in Davis v. Monroe County Board of Education (1999), in which the Supreme Court set out a standard for peer-on-peer harassment in the educational setting that protects free speech while preventing real discriminatory harassment. Under the Davis standard, behavior becomes punishable when it is (1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected class, such as race, (4) directed at an individual, and (5) "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."


The Davis standard is a definition that is serious and that correctly confines harassment to seriously discriminatory patterns of behavior. Such a specific definition is nothing like the countless campus codes that prohibit "inappropriate," "demeaning," or merely "offensive" speech. Adopting Davis would send a strong message that "harassment" can no longer be treated as code for a student's or administrator's supposed "right not to be offended."


Colleges could adopt the Davis standard on their own, or the standard could be written into federal or state legislation. Since all schools receiving federal funding are already bound by Titles VI and IX to have rules against racial and sexual harassment, adding this standard to law would not result in further federal entanglement. Indeed, it would add much needed clarity to federal requirements that confuse nearly everyone involved. It is crucial, however, that the law state that the definition of harassment should be understood as "no more and no less than" the Davis standard, and that the Davis standard definition be the only acceptable definition of harassment in the educational context. Without such language, campuses would simply go back to their current practice of having an arguably constitutional definition of harassment in one part of their code coupled with comically unconstitutional definitions of harassment elsewhere.

 

3. Litigate Aggressively.


Public colleges and universities that maintain unconstitutional speech codes are, of course, breaking the law. Yet at least 61.6% of the public colleges rated by FIRE have speech codes that we deem to be blatantly unconstitutional. FIRE's Speech Code Litigation Project helps students file lawsuits against such unconstitutional speech codes, usually at the rate of about one per year. The project has a 100% success rate, aided by the "target-rich" environment and our expertise in constitutional law. FIRE has also repeatedly provided college administrators with "actual notice" about their unlawful codes through massive certified mailings, making liability for those codes easier to establish.


Our efforts to highlight speech codes with our annual Spotlight reports and targeted litigation have helped. Five years ago, 75% of schools had speech codes that violate First Amendment principles. This year, it was down to 62%. We've spent 14 years working to roll back speech codes while avoiding truly widespread litigation. Yet with more resources targeted towards litigation, there's no doubt that this number could be driven lower as schools realize the risks of maintaining speech codes that are frankly indefensible in a court of law.


Campus speech codes and unclear federal policies currently give campus administrators an excuse to overreact to speech. Indeed, university attorneys have some basis for believing that it may be safer, from a liability standpoint, to overreact. This kind of legal ambiguity--which can leave administrators wondering if they can be sued for not violating the Constitution--sends the problem of politically correct administrators into overdrive. Litigation on a large scale may be the only way to rebalance this perverse incentive structure by creating a real and substantial risk to colleges that currently find it safer and easier to censor first and ask questions later.

 

4.  Make Colleges Certify Free Speech Protection.  


Knowledge is power, which makes disclosure rules a popular form of providing transparency in many sectors of our economy. Lawyers, stockbrokers, accountants, and many others are used to disclosing pertinent information in the course of business. But there's no rule that says universities must disclose whether they protect students' fundamental rights, despite the fact that they are treated like autonomous city-states with little oversight or accountability in this area. Congress could add a provision to federal law that would require public colleges to annually certify that they have reviewed their policies and that they comply with the First Amendment. The legislation would also require private institutions to declare whether they offer their students free speech rights equivalent to those enjoyed by students on public campuses. These submissions would be posted in a searchable online database, so the information would be publicly available. Private universities that aren't bound by the Constitution would likely find it difficult to tell students and faculty don't have anything like full First Amendment rights.


While the law would not have to involve penalizing universities for not protecting speech (although public universities would court disastrous lawsuits if they admitted they didn't follow the First Amendment), they would have to carefully consider their answers.

 

5. Not Just Sticks: Provide Carrots to Colleges that Behave.


FIRE has ensured that administrators who refuse to address speech problems on their campuses face possible legal action, expenses, the loss of qualified immunity, and negative publicity. However, simple negative reinforcement is not enough. Colleges must also have "carrots"--positive incentives for reform--to go along with the metaphorical sticks. FIRE works hard to provide positive publicity for those schools that do cooperate and reform their policies. Schools that earn a "green light" rating from FIRE, such as recent examples Eastern Kentucky University, Ole Miss, and Mississippi State, receive public praise, a reward that encourages other schools to follow suit. FIRE has also begun publishing an annual list of the best schools for freedom of speech in The Huffington Post.


Perhaps most valuable, though, is FIRE's willingness to work with universities to avoid the circumstances that lead to bad publicity. FIRE attends multiple college administrator conferences every year to let them know what the law says about free speech and to make sure they know that FIRE is ready to collaborate with colleges in crafting policies that meet their needs without compromising essential freedoms. Rather than pay tens of thousands of dollars to "risk management" consultants who are more concerned with avoiding liability than they are with the Constitution, colleges can work with FIRE--for free, of course--to devise policies that have the greatest protection possible: a basis in reason and principle.

 

6. The Broader Job: Let's Work to Change the Culture.


FIRE has been successful in winning its  battles one after another. But progress is slow and resistance is high. So it's essential to talk about ways to try to spark a meaningful cultural transformation that will push back against the tide of illiberal behavior on campus.  We must act on more than a case-by-case basis. We must seek systematic solutions.

Since K-12 civics education fails to provide the foundation in the First Amendment and the overall principles of a free society, students arriving in college need to understand their rights. While students know that America protects freedom of speech, and they care about that, most can't articulate the underlying principles or explain why freedom of speech, dissent, thought experimentation, and devil's advocacy are important. And colleges are hardly helping students learn these valuable lessons. FIRE is increasingly aiming at reaching high school students before they arrive on campus. For instance, FIRE's "Freedom in Academia" high school essay contest has elicited over 13,000 submissions since it first began and continues to grow. This year, we're also partnering with the Bill of Rights Institute to develop a curriculum package for high school seniors with a FIRE video and a step-by-step lesson plan.


Another small-scale idea that could have a big impact on campus would be a "boot camp" program for American high schoolers. Beginning in large cities such as New York and Philadelphia, advocates could host sessions focusing on the challenges on campus and how students can fight back against censorship and attempts to clamp down on independent thought. Armed with the tools necessary not only to advocate for the First Amendment, but to understand the importance of meaty, meaningful debate, these students will arrive on campus ready to defend their rights and the rights of their fellow students.  Not every student must be fully educated on the First Amendment. In our experience, even a single student with knowledge of free speech and the power of dissent has the potential to make a difference. Alumni also offer a powerful but difficult-to-mobilize constituency. Over the last decade, we've seen that legal pressure and public attention can have a huge impact on campus. That pressure is all the more difficult to resist when it comes from alumni. After all, few colleges or universities will risk losing millions in alumni support that they could retain by reforming their policies or reversing rights violations. Money talks, and if we can educate alumni on just how serious censorship is at their alma mater, their voices will be heard loud and clear by administrators.


Finally, and most broadly, we must seek ways to overcome the "echo chamber" effect that is prevalent in academia and increasingly in our society at large. This is not something that Congress or lawyers can fix: the change must necessarily be cultural. But if a way can be found to promote the idea that truly educated people seek out discussions with smart people with whom they disagree, it could go a long way to overcoming groupthink both on and off campus.


Too often, people succumb to the temptation to dismiss their political and cultural opponents as ignorant or stupid. And there are many ignorant and/or stupid people out there in all walks of life. If you're looking for one to take on in order to make yourself feel better about your beliefs, you'll find one. But nearly every idea in American discourse that is not utterly fringe has hundreds or thousands of advocates who are perfectly capable of making solid cases for their beliefs. The fact is, if you can't find a person who is capable of making rational arguments on behalf of the Tea Party or Occupy Wall Street, you didn't really try, especially in the age of the Internet.


But you might not get this impression on a college campus. As Penn professor Diana C. Mutz discussed in her 2006 book Hearing the Other Side, the more education you have, the less likely you are to have exposure to people with different points of view. This is asking for (and delivering) massive problems of "confirmation bias" that spill over into society at large. One might hope that colleges would be aware of this problem and would be working overtime to correct it; it is, after all, their job to ensure their students are being trained to use the tools of reason and critical thinking. But there's little indication that this is the case on the scale necessary to make a difference.


That's why promoting a cultural norm that advocates seeking out those people and testing one's beliefs would advance dialogue more than we can now imagine is possible. Debate series like Intelligence Squared, websites like Bloggingheads.tv, and others are doing great work towards this goal off campus, and similar programs exist on campus as well. But this shouldn't be just an optional program on campuses--it should be a core goal of the university. Failing that, teaching students that debate is actually fun as opposed to fraught with the risk of offense, that seeking out opposing viewpoints is what smart people do, that too much agreement may not mean that you are right but that you are caught in a self-affirming clique, and that thought experimentation leads to better ideas could do a lot to help students poke their heads out of the echo chambers campus censorship helps create.


"Safety" is a much abused term on campus, often invoked lightly to refer to a generalized right for students to feel emotionally unchallenged. That kind of "safety" is a more appropriate goal for K-8 education, and even there it has likely already been taken too far--eighth graders understand a whole lot about disagreement. But there is a kind of safety for which advocates of reform in higher education must press: campuses need to be places where it is safe to disagree at a fundamental level, safe to question and even satirize the university's sacred cows, safe to question the conventional wisdom, and safe even to be wrong, to provoke, and (gasp) to joke. While there has been much talk in the last decade that higher education is moving on to some next level, little progress can be made within the existing models as long as students and faculty can and do still get in trouble for merely stating opinions that administrators dislike.

Greg Lukianoff is an attorney, president of the Foundation for Individual Rights in Education (FIRE) and author of Unlearning Liberty: Campus Censorship and the End of American Debate.

 

Robert Shibley is an attorney and Senior Vice President of FIRE.


(Photo 1: UMass Student Protest. Credit: Matt Cadwallader via Masslive.com.)

(Photo 2: Sam Houston State University student protest. Credit: The Hunstville Item via FIRE.)    





Comments (5)

It is a sad commentary, indeed, that colleges and universities have to be pulled and pushed by various carrots and sticks, into the world of liberty and academic freedom. But one supposes that until there is a genuine culture change in American higher education, such that freedom is once again valued, such incentives and threats are a necessary evil. In an ideal world, the federal government would not even posses the power to wield such carrots and sticks.
HARVEY SILVERGLATE, lawyer and writer,
Chairman of the Board of F.I.R.E.

Wayne:

Patrick Henry College does not accept any federal funding, including individual grants and loans.

Bart Daly:

Re: the Davis standard:

"...(1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected class, such as race, (4) directed at an individual, and (5) "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."

An excellent idea - but would not (2) and (3) be covered by (1)? Is it possible that by using the full Davis standard - I am assuming that all 5 points would have to be met before harassment could be said to have occurred - colleges might miss out on preventing harassment that isn't based on a protected class, or "discrimination", whatever that precisely means in this context?

Cheers
Bart

PersonFromPorlock:

Administrators shrug off lawsuits, even if they lose. Put one in prison for violating 18 USC 241 or 242 and everyone's mind will be *wonderfully* concentrated.

Ed:

For us alumnae, do you have information on specific universities that we may use to gauge the level of freedom on a particular campus?

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