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Speech codes squelching campus speech, survey shows

By Melanie Bengtson
First Amendment Center Online intern

Speech codes at America’s colleges and universities are inhibiting students’ freedom of expression, according to a recent report released by the Foundation for Individual Rights in Education.

“The state of the First Amendment on campuses is not in good shape,” said Samantha Harris, FIRE’s director of legal and public advocacy.

The report, Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation’s Campuses, compiles FIRE’s analysis of policies at more than 330 schools nationwide. The report, released Dec. 6, concluded that more than 68% of schools had policies that “clearly and substantially restrict freedom of speech.”

The organization maintains a database called Spotlight, which contains analysis of speech codes of colleges and universities across the country. Each school is evaluated on whether it has any of the following: policies on diversity and multiculturalism; protected-group harassment policies; sexual-harassment policies; general harassment policies; policies on tolerance, respect, sensitivity, hate, and hate speech; loyalty oaths and honor codes; mission statements; advertised commitments to freedom of speech; other speech codes; mandatory student-orientation materials; student-fee policies affecting freedom of association; and other policies restricting freedom of association.

FIRE rates each school on the constitutionality of those policies, as determined by U.S. Supreme Court decisions. Every school is given a red, yellow, or green light. Red-light schools have at least one policy that clearly and substantially restricts freedom of speech. Yellow-light schools have policies that “could be interpreted to suppress protected speech” or that prohibit narrow types of speech. Green-light schools do not have policies that restrict student speech. Of the 328 rated schools, FIRE gave only eight a green light. It gave 229 schools red lights and 91 yellow lights. FIRE could not rate six private schools because they stated that they upheld values over free expression; for example, Brigham Young University’s religious doctrine must not be contradicted.

FIRE surveyed the written policies of schools, not the actual actions of administrations. However, the policies have a “chilling effect,” Harris said, and “even if a school doesn’t punish a student … if it has policies on the books, students are going to censor themselves.”

FIRE’s survey included both public and private schools and found public schools to be more restrictive than private. Of the 104 private schools, 58% were given red lights. Of the 230 public schools, 73% were given red lights. Though the First Amendment does not cover private schools, FIRE chose to include them in the survey because many of them profess to value free discourse as an integral part of education.

Many schools were found to have unconstitutional harassment policies. That finding echoed a 1995 First Amendment Center survey, War of Words: Speech Codes at Colleges and Universities in the United States. That report showed that 90.5% of the 207 schools surveyed had unconstitutional sexual-harassment policies. What is often considered harassment by universities does not fall within the Supreme Court’s definition of harassment. In Davis v. Monroe County Board of Education in 1999, the Court decided that “the behavior must be serious enough to have the systemic effect of denying the victim equal access to an education program or activity.”

According the Office of Civil Rights, whose definition of harassment FIRE also cites, “Harassment … must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.”

The University of Nebraska at Lincoln was one of eight schools given a green-light rating. Its harassment policy states: “Sexual harassment is unwelcome sexual advances, unwelcome requests for sexual favors, and other unwelcome verbal or physical conduct of a sexual nature when: … Such conduct has the purpose or effect of reasonably interfering with the individual’s work or academic performance.”

The University of California at Los Angeles received a red light. Its harassment policy states: “Sexual harassment may include: derogatory remarks about one’s clothing, body, or sexual activities based on gender; disparaging remarks, jokes, and teasing based on gender; verbal harassment or abuse; subtle pressure for sexual activity; unwelcome touching, patting, or pinching; demanding sexual favors.”

Vanderbilt University is a private institution that was given a yellow light. Its mission statement says: “Vanderbilt values most highly: intellectual freedom that supports open inquiry.” However, Vanderbilt’s student handbook states that “students are subject to disciplinary action when, individually or as members of a group, they violate University policy, rules, or regulations, including … disorderly conduct or obscene conduct or expression.”

According to the FIRE report, restrictions on disorderly conduct often include free speech, which it interpreted Vanderbilt’s to do, thus its yellow-light rating.

Vanderbilt’s vice chancellor for public affairs, Michael Schoenfeld, said, “I think (that) like any great university, [Vanderbilt offers] unlimited opportunities for free expression on campus — it happens in the classroom, at the forum, through our robust student media, speakers, lecturers and events. I’m rather puzzled that there would be any question about Vanderbilt’s free expression.”

“Overall the trend seems to be towards more censorship,” Harris said. “One thing we find is when we write to schools [to gather information] … there is a fundamental misunderstanding. People don’t know quite how much speech is protected by the First Amendment.”

The other seven schools given a green-light rating: Cleveland State University, Dartmouth College, Duke University, Elizabeth City State University, University of Iowa, University of Pennsylvania and Washington and Lee University.

Schoenfeld said, “The mission of a university is to be a forum for ideas — good ideas and bad ideas — to be a place where knowledge is imparted, tested, challenged, and ultimately disseminated.”

Melanie Bengtson is an intern at the First Amendment Center and a sophomore studying developmental politics at Belmont University.

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