How Did Freedom of Speech Suppression Happen?
NEWSLETTER CONTENTS:
What Exactly Is “Free Speech,” And How Do Universities Curtail It?
Policies on Tolerance, Respect, and Civility
Policies Governing Speakers, Demonstrations, and Rallies
Speech codes—university regulations prohibiting expression that would be constitutionally protected in society at large—gained popularity with college administrators in the 1980s and 1990s. Utilizing the Foundation for Individual Rights in Education’s (FIRE) extensive website, reports, and statistics, most of the content for this chapter is borrowed from these ground breaking resources in the arena of free speech rights and protections.
As discriminatory barriers to education declined in the Sixties and Seventies, female and minority enrollment increased substantially starting in the Eighties. Concerned that these changes would cause tension and that students who finally had full educational access would arrive at institutions only to be offended by other students, college administrators enacted speech codes.
In the mid-1990s, the phenomenon of campus speech codes converged with the expansion of Title IX, the federal law prohibiting sex discrimination in educational institutions receiving federal funds. Under the guise of the obligation to prohibit discriminatory harassment, unconstitutionally overbroad harassment policies banning subjectively offensive conduct proliferated. Given the current undergraduate tendency toward intellectual orthodoxy, one wonders: Would the advances of the feminist movement even have happened, had the campus conformists of a half- century ago had their way?
Respect for freedom of speech and diversity of thought are essential for achieving civil and thoughtful discourse, but also for enabling societal progress itself. Progress relies on early agitators, who are willing to speak out and press forward, no matter the backlash they engender. Many ideas once considered heretical have become accepted wisdom, thanks to early dissenters challenging the tide.
Real change relied on the courage of young women during the 1960s and 1970s, who stood up for equal opportunity in higher education and the workforce. They faced vocal opposition from many college alumni, professors, and fellow students. Nevertheless, these women persisted, no matter how “problematic” their efforts may have been considered. Their determined activism paved the way for the generations to come.
Campus Speech Codes Converged With the Expansion of Title IX
Colleges and universities that receive federal funding must be in compliance with new rules by August 14, 2020. The regulations rebalance "scales of justice," says Betsy DeVos, the Secretary of Education. “The new regulation will secure due process rights for students who report sexual misconduct and for those accused of it, by requiring colleges to provide live hearings and allowing students' advisers to cross-examine parties and witnesses involved.”
Under the new rules, institutions must presume that those accused of sexual misconduct are innocent prior to the investigative and decision- making process, addressing a repeated criticism of 2011 guidance issued by the Obama administration. Those in favor of a Title IX overhaul say the Obama guidance, referred to as the Dear Colleague letter, caused colleges to over enforce campus sexual misconduct and led to students being unjustly removed from campuses for false accusations. DeVos rescinded the letter in 2017.
In enacting speech codes, administrators ignored or did not fully consider the philosophical, social, and legal ramifications of placing restrictions on speech, particularly at public universities. As a result, federal courts have overturned speech codes at numerous colleges and universities over the past three decades.
Despite the overwhelming weight of legal authority against speech codes, a large number of institutions—including some of those that have been successfully sued on First Amendment grounds—still maintain unconstitutional speech codes. It is with this unfortunate fact in mind that FIRE turns to a more detailed discussion of the ways in which campus speech codes violate individual rights and what can be done to challenge them.
The Campus Expression Survey (CES) was developed by members of Heterodox Academy in response to students and professors who say they feel like they are “walking on eggshells,” not just in the classroom but in informal interactions on campus as well.
Q2: WHY are they afraid? WHAT potential consequences are they most concerned about?
• Students are concerned about their views being criticized as offensive by other students. This concern was higher, on all three controversial issues of gender, race, and politics, than any of the other concerns assessed.
What Exactly Is “Free Speech,” And How Do Universities Curtail It?
With limited, narrowly defined exceptions, the First Amendment prohibits the government—including governmental entities such as state universities—from restricting freedom of speech. A good rule of thumb is that if a state law would be declared unconstitutional for violating the First Amendment, a similar regulation at a state college or university is likewise unconstitutional. The guarantees of the First Amendment generally do not apply to students at private colleges because the First Amendment regulates only government conduct. Moreover, although acceptance of federal funding does confer some obligations upon private colleges (such as compliance with federal anti-discrimination laws), compliance with the First Amendment is not one of them.
This does not mean, however, that students and faculty at all private schools are not entitled to free expression. In fact, most private universities explicitly promise freedom of speech and academic freedom in their official policy materials. Lehigh University, for example, promises students “free inquiry and free speech and expression, including the right to open dissent.”
Similarly, according to Middlebury College’s student handbook, students “are free to examine and discuss all questions of interest to them and to express opinions publicly and privately.” Yet both of these institutions, along with most other private colleges and universities, maintain policies that prohibit the very speech they promise to protect.
Encouragingly, more colleges than ever before, including private institutions, have adopted policy statements in support of free speech modeled after the one produced in January 2015 by the Committee on Freedom of Expression at the University of Chicago. This trend is explored in further detail in Chapter 4.
What Does the FIRE Mean When They Say That a University Restricts “Free Speech”?
Do people have the right to say absolutely anything, or are certain types of expression unprotected?
Keep reading with a 7-day free trial
Subscribe to Progressivism Madness to keep reading this post and get 7 days of free access to the full post archives.