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FIRE defends campus speech-code survey

By Melanie Bengtson
First Amendment Center Online intern

An April 20 article in the Chronicle of Higher Education criticized the work of the Foundation for Individual Rights in Education after it published a survey of speech codes at colleges and universities across the nation.

Jon B. Gould, the author of the article and an assistant professor of government and politics at George Mason University, challenged FIRE’s December 2006 survey of speech codes. The report compiled FIRE’s analysis of 330 schools and said more than 68% of them had unconstitutional speech codes.

Calling FIRE “an increasingly ideological organization that exaggerates the facts to make political hay,” Gould branded its staffers “ideological opportunists.”

Gould made a four-fold argument against FIRE’s findings, to which the organization responded with a series of articles on its Web site.

First, Gould said that the inclusion of both public and private schools in the report showed inconsistency. Second, he compared FIRE’s results with the results of a similar survey that he had conducted and challenged the group’s methodology. Third, Gould disagreed with FIRE’s characterization of sexual-harassment policies as speech codes. Fourth, Gould accused FIRE of making judgments based on selective quotations from university policies.

Inconsistency. Gould asserted that, by including both public and private schools in its survey, FIRE mixes apples and oranges, enjoying “any opportunity — whether at public or private institutions — to challenge what it considers ‘thought control’ from self-appointed, and not inconsequentially liberal, academic censors.” He cited its recent campaigns against Brown University, Pace University and Johns Hopkins University — all three private institutions, which are not bound to provide First Amendment speech protections as public campuses are.

Chris Perez, a program officer at FIRE, responded, “We at FIRE believe that when a school, public or private, makes a promise to a student — whether in a student handbook or a brochure or a speech from the president, that school is morally and legally bound to honor that promise.”

FIRE included 104 private schools in its survey, evaluating them on the basis of the values listed in their mission statements or handbooks instead of on the Bill of Rights, which binds public universities. FIRE Vice President of Operations Robert Shibley wrote, “When we find a school that professes to value free expression or academic freedom, we evaluate its speech codes to see if its choices reflect those values.”

Survey comparison. Gould challenged FIRE’s research paradigm by comparing it with his similar survey. Using criteria from a similar First Amendment Center survey, Gould evaluated the hate-speech codes at 100 schools from 1992-1997. He found that 46% of schools had policies that restricted hate speech, but only 9% of them were unconstitutional. In contrast, he said FIRE found that 96% of schools had unconstitutional policies.

FIRE Senior Program Officer William Creeley responded to Gould’s methodological critiques. He said that Gould combined FIRE’s red- and yellow-light ratings to reach the 96%, whereas FIRE’s report said only 69% of schools had unconstitutional policies. (A red-light rating was given to a school with a policy that clearly and substantially restricts free speech. A yellow-light rating was for policies that may be interpreted to restrict speech or prohibit only narrow types of speech.) Creeley said two main factors contributed to the discrepancy in the two surveys’ results. First, they used different rating systems and different criteria. Second, FIRE surveyed a larger number of universities — 330 to Gould’s 100.

Creeley also observed differences in the policies surveyed. “We [FIRE] review any written policy maintained by the school with an impact on campus speech. … Gould’s study, on the other hand, is shockingly vague about what exactly constitutes a ‘college hate speech code’ or a ‘speech policy,’ and proper definitions of either term are never supplied.”

Sexual harassment. Gould disagreed with the characterization of sexual-harassment policies as speech codes. The debate between FIRE and Gould centers on the definition of sexual harassment and what speech is protected by the First Amendment.

Gould cited Title VII of the Civil Rights Act to define harassment, which according to the Equal Employment Opportunity Commission, “includes practices ranging from direct requests for sexual favors to workplace conditions that create a hostile environment for persons of either gender.”

Gould also noted the Supreme Court’s 1992 opinion in R.A.V. v. St. Paul, which says “that sexist or sexually degrading expression could be litigated as ‘a proscribable class of speech … within the reach of a statute [Title VII] directed at conduct rather than speech.’ More recently courts have created a private right of action under Title IX to apply sexual-harassment standards to academe.”

In an April 30 column in The New York Times, Stanley Fish, a professor of law at Florida International University, attempted to clarify the differing views on sexual harassment offered by Gould and FIRE. He wrote: “Much of the disagreement between Professor Gould and FIRE turns on the technical question of what does and does not amount to harassment. FIRE follows a 1999 Supreme Court decision (Davis v. Monroe County) in asserting that speech is harassing, as opposed to being merely offensive, if it is ‘so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.’ Professor Gould’s threshold for deeming a form of speech harassing would be lower and would be tied to what he considers to be the prevailing norms of ‘civil society’.”

Gould said the problem with FIRE’s criticism of sexual-harassment policies was that they are necessary to defend against Title VII and IX lawsuits.

Samantha Harris, FIRE’s director of legal and public advocacy, said that FIRE’s criticism of sexual-harassment policies stems from universities’ broad definitions of harassment, which she considers outside of the legal definition. As an example, she cited the Kansas State University policy, which says: “Examples include sexual teasing, jokes, remarks or questions … facial expressions, winking, throwing kisses or licking lips, spreading rumors … staring, looking a person up and down.”

Harris said, “The problem is that a large number of colleges and universities define sexual harassment to include speech that categorically does not meet the stringent legal definition of harassment. … Universities cannot simply make protected speech unprotected by deeming it ‘sexual harassment’.”

Creeley also said that from 1989 to 2007, seven federal cases have challenged university speech codes. Six of them overturned unconstitutional harassment policies.

Selective quotations. Gould accused FIRE of evaluating selective quotations from speech codes. He cited the speech code at the University of Michigan at Ann Arbor as an example. FIRE criticized the portion of the code that reads, “Individuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others.” However, Gould noted that this was just a portion of the code and that it also says, “Freedom of expression and an open environment for sharing information are valued, encouraged, supported, and protected. … Individuals must be able to choose what they wish to access for their own purposes.”

Shibley said the other statements, which FIRE did not include, were modifiers of the original rule. If a student broke that rule, he or she could still be punished in spite of the other clauses. “A public university cannot constitutionally punish one student for merely ‘offending’ other students, via electronic communication or otherwise, and the fact that students have permission to access whatever they like when they are by themselves is immaterial.”

The debate between Gould and FIRE has caught the attention of others who have spoken out in support of FIRE.

Mark Goodman, executive director of the Student Press Law Center, wrote in an email to the Free Expression Network, “By our [SPLC’s] measure, colleges could use a lot of improvement when it comes to protecting unpopular expression on both the right and the left. The ‘ideological opportunists’ out there fighting against restrictions on speech are responsible for prompting policy changes that protect the speech of everyone. For that, they deserve to be commended.”

David French, former president of FIRE and current senior legal counsel at the Alliance Defense Fund and director of ADF’s Center for Academic Freedom, wrote on National Review Online, “I will believe that FIRE exaggerates the prevalence of speech codes the day that a federal judge upholds as lawful a code that FIRE labels ‘red’ in the Spotlight database. We can argue about legal interpretations all day long, but federal judges make the ultimate decision, and so far FIRE hasn’t gotten one wrong yet.”

In response to Gould’s claims that FIRE is “increasingly ideological,” FIRE president Greg Lukianoff said, “FIRE defends the rights of those from all points of the political spectrum and we take flack from all points of the political spectrum about one case or another — which indicates to me that we are doing something right.”

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

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