Meet the Mid-Level Bureaucrats Who Impose Speech Codes on America’s Universities

This piece was originally published by the John William Pope Center for Higher Education Policy on February 4, 2015. You can view the original post here. Since this piece was written, George Mason University has repealed the speech code mentioned below. GMU now has a Green Light rating from FIRE.

The university where I teach, George Mason University (GMU), has a speech code which purports to regulate the speech of students in the interest of civility and educational values.

As a result, the Foundation for Individual Rights in Education has given George Mason a“yellow” light rating, which identifies an institution “with at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application.” Following a 2005 incident in which a student (and former Air Force veteran) was arrested by campus police for violating a substantively similar regulation, the university pledged to review its policies. But nearly a decade later, the rules haven’t been improved.
Many observers might conclude that left-wing professors are here again imposing on students a stultifying political correctness, antithetical to the mission of a university, but that isn’t what’s happening. At GMU and many others universities, faculty members aren’t asked whether or how students’ speech should be regulated.

There is a separate office for that, called “University Life,” staffed with specialists who do not have academic appointments. It writes the rules, enforces them, and adjudicates violations of the rules of student conduct, including speech. Though it establishes some of the most important academic policies of the university, it effectively operates autonomously, resistant to inputs from the academic side of the house, even from well-intentioned law professors who would like to see their school live up to the highest ideals of the Enlightenment.

I can testify as an expert, having spent the past five years, on and off, trying (and failing) to get our university’s speech code fixed.

The story begins in 2005, when T. J. Rodgers, Peter Robinson, and I, as members of the Dartmouth College Board of Trustees stressed the need for Dartmouth to abolish its speech code. We met with success and that year Dartmouth abolished its speech code and was awarded a green light rating by FIRE (which it retains to this day, despite some backsliding).

Fresh off that experience, I turned my attention to GMU. FIRE didn’t like our speech code because there were problems and ambiguities, such as its prohibition on any communication that might cause “injury, distress, or emotional…discomfort” and requiring any posters to receive prior approval by the university to make certain they’re consistent with the “educational mission of the University” (a standard that is nowhere defined).

To me, they seemed more like oversights and drafting errors than consciously adopted policies. As a faculty member of at least modest seniority, I supposed it wouldn’t be difficult to draw the attention of the University Life staff to the problems, and let them take it from there.

Starting some five years ago, I contacted the then-president of the university and explained the problem. He got it—an administrative error had been made—a minor matter, easily fixed (or so he thought). He said I should follow up with the provost, who was similarly sympathetic.

It was then that my street-level education about modern university administration began. It is all very well and good for the president to have views and the provost to have views, but the actual policies and the language in which they are conveyed are determined by the bureaucracy.

That might be a tolerable (albeit odd) arrangement if it produced acceptable results, but the main stream of thought inside the University Life bureaucracy is decidedly hostile to free expression.

For example, at one point one of the administrators told me that vagueness in a speech code is actually a positive virtue, because that way, students can be disciplined for disruptive conduct or speech that doesn’t actually violate any rule.

Such a principle turns ordinary standards of free expression and due process on its head. Whereas the First Amendment demands clear rules governing speech to ensure that protected speech is not chilled, the university actually sought to establish vague rules precisely to deter students from venturing near what otherwise would be protected speech, and reserving the right to punish them ex post if they didn’t steer far enough away.

Speech codes come from a bureaucracy that’s professionally dedicated to keeping a body of late adolescent/young adults who have to live with one another calm, unoffended, and out of the newspapers as much as possible. Those objectives may well be worthy, but they are not in themselves the main purpose of higher education, which often demands that students confront ideas they find deeply disturbing.

Tensions between civility norms and intellectual norms are not unique to George Mason. For illustration, consider a recent episode at the University of Chicago. Earlier this month, a high-profile faculty committee chaired by former law school dean Geoffrey Stone issued a policy statement that reaffirmed the university’s long-standing tradition of uncompromising support for free speech. This policy statement provided a strong dose of the old-time religion of free expression, free inquiry, and institution-level ideological neutrality.

The Stone Committee’s policy statement reads: “Because the University is committed to free and open inquiry in all matters, it guarantees all members of the University community the broadest possible latitude to speak, write, listen, challenge, and learn….[I]t is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive.”

One might suppose these to be sentiments to which all right-minded citizens of a self-respecting university could subscribe.

Some public censure was, however offered. The editors of the Chicago Maroon (the student newspaper) upbraided the faculty committee for failing to exempt what it called “hate speech” from the protections offered to speech in general. Against the faculty’s absolutist tone, the students sided with the principles announced by the university’s ”Vice President for Student Life and Student Services” instead:

The report specifies that the University can still regulate speech that is unlawful, libelous, or threatening, calling these categories “narrow exceptions” to a policy of general free expression. However, labeling these types of speech “narrow exceptions” minimizes the seriousness and harmfulness of this kind of speech. What is more concerning are the University’s apparent inconsistencies on this issue. In an e-mail sent on November 24…Vice President for Campus Life and Student Services Karen Warren Coleman reiterated the University’s “commitment to a diverse campus free from harassment and discrimination.” Given the University’s stated commitment to eradicating hateful speech on campus in the past, it is disappointing that it has failed to maintain this strong stance in its most recent report.

It is depressing to think that sentiments such as these might represent the authentic voice of a younger generation that, having heard hardly any other message from the culture in which they were reared, has come to fully embrace the gods of political correctness.

It is even more depressing when one considers that even the most apparently-secure fruits of the Enlightenment are never more than one generation away from extinction if they are adhered to only by the older generation but despised by the younger.

But even where schools move in the right direction of protecting speech, they often backslide. While Dartmouth retains its “green light” rating, the administrators in the Office of Pluralism and Leadership have recently adopted a policy encouraging the reporting of “bias” incidents. This includes activities such as “stereotyping” and “avoiding and excluding others” and actually encourages students to report unconscious or unintentional offenses.

Although the administrators who issue these rules may be well-intentioned, such vague and subjective standards for restricting speech can chill the robust exchange of ideas on controversial subjects, especially when implemented by an advocacy office such as the “Office of Pluralism and Leadership.”

Of all the many ideas that constitute our civilization, none is more central or important than the norms of free inquiry. The last place one should entrust these norms for safekeeping and propagation is to a bureaucracy that is dedicated to peace and quiet. Yet today, it is they, not the faculty, who are the true enemies of free speech on campus.

Five years after I began my quest, GMU’s policy remains unchanged.

As for Professor Stone’s ringing endorsement of free speech at the University of Chicago, the school holds a “yellow light” rating from FIRE, as its Code of Student Conduct provides (among other restrictions), “if a posting is deemed to be offensive to a particular group or individual, the posting may be removed.” Swell little report you’ve got there, Professor Stone! Maybe someone with real power will read it one day—if you’re lucky, even the Vice President for Campus Life and Student Services.

Todd J. Zywicki is George Mason University Foundation Professor of Law at Antonin Scalia Law School, Executive Director of the Law & Economics Center, Senior Scholar of the Mercatus Center at George Mason University, and Senior Fellow at the F.A. Hayek Program for Advanced Study in Philosophy, Politics and Economics.