The Good, The Less-Good, and the Path Forward: Thoughts on FIRE’s Annual Report

Since its inception in 1999, the Foundation for Individual Rights in Education (FIRE) has become the nation’s preeminent institution fighting for free speech and open inquiry in higher education. Though FIRE’s path-breaking efforts stand on their own, it has also cooperated or interacted with other organizations at times, including providing support and insights regarding IHS’s Free Speech and Open Inquiry Project. IHS deeply appreciates such interaction.

Among FIRE’s many worthy endeavors are its annual reports on the status of free speech-related policies in campuses across the nation. Its recently released report is no exception. Entitled Spotlight on Speech Codes 2017: The State of Free Speech on Our Nation’s Campuses, the report also presents a snapshot of how free speech has slightly improved over the course of the last year, at least in one important respect. But the report also documents how matters have declined in other respects, and calls for upgraded efforts to turn things around.

The Relatively Good News: What Is Written

The new report is an update of FIRE’s 2016 report. The 2017 report is based on a survey FIRE conducted of 449 institutions of higher learning. Of these, 345 were public institutions that are thereby obligated to abide by the First Amendment. The 104 private schools surveyed are not so obligated, but their inclusion is important for at least two reasons. First, most of them have policies or make contractual promises that guarantee free speech and academic freedom rights consistent with either the First Amendment or the principles of higher education in general. These promises create contractual obligations in favor of free speech and open inquiry. Second, the quality of freedom of the mind in private schools has an impact on the status of free thought in higher education more generally. Only seven private schools in FIRE’s survey do not provide strong contractual or policy-based promises protecting speech.

Before analyzing the results, let me first present FIRE’s basic findings regarding the status of speech-related policies as they are written. It is in this domain that improvement is found. In terms of what policies and codes say in writing, the new report is encouraging compared to previous surveys. 39.6 percent of the institutions surveyed have Red Light codes compared to 49.3 percent just a year ago. Furthermore, FIRE gave Green Lights to 27 schools compared to 22 a year ago. This is the highest number of Green Lights FIRE has given institution-wide. Of these schools, many had eliminated their speech codes entirely. The report is also glad to point out that 20 schools in FIRE’s database had had formally endorsed their own versions of the “Chicago Statement on Freedom of Expression.”

So what do the different colors represent? FIRE awards a “Red Light” to the most offending institutions: those that have at least one policy that “both clearly and substantially” restricts free speech or “bars public access to its speech-related politics by requiring a university login and password for access.” “Clearly” means that the restriction is unambiguous, while “substantial” means that the policy has widespread application. For example, a general ban on “offensive speech” would be both unambiguous and broad.

In addition, by restricting online access to their policies to persons who have the requisite passwords, universities and colleges prevent potential outside critics and others from fathoming what is going on, thereby shielding the institutions from criticism or exposure. I did not know that colleges and universities deployed such telling restrictions until I read the report. (My school, UW-Madison, does not limit access to school policies.) Such restrictions are telling for at least two reasons. First, higher education is supposed to be dedicated to the pursuit of truth, so it is ironic and contradictory that such institutions strive to hide the truth from the public they ostensibly serve. Second, FIRE’s founders have consistently quoted and honored the famous observation of Supreme Court Justice Louis Brandeis that “sunshine is said to be the best of disinfectants.” Regarding such denial of access to the uninitiated, the report states, “At FIRE, we consider this denial to be so deceptive and serious that it alone warrants a red light rating.”

A “Yellow Light” is awarded to an institution that has speech-related policies that “could be interpreted to suppress protected speech or policies that, while clearly restricting freedom of speech, restrict only narrow categories of speech. For example, a policy banning ‘verbal abuse’ has broad applicability and poses a substantial threat to free speech, but it is not a clear violation because ‘abuse’ might refer to unprotected speech, such as threats of violence or genuine harassment.” Yellow Light policies are likely unconstitutional for reasons of over breadth and/or vagueness, and FIRE is clear that it holds Yellow Light Policies in very low regard.

The Foundation’s position on Yellow Lights reflects an important understanding that is familiar to anyone who has engaged in campus free speech politics: in the real world, what often matters most is not what a rule says—though that is obviously important, too—but who applies a rule, and how it is applied. Even a Green Light rule can be subject to abuse in the wrong hands. (For example, the University of Pennsylvania speech code in the famous “Water Buffalo” case in 1993 was limited to “fighting words, “ which the Supreme Court has long held lie outside the umbrella of First Amendment protection. But this did not prevent the administration from applying the correctly written code to a case that came nowhere near constituting fighting words.) Universities and colleges are often like minor city-states replete with byzantine bureaucracies and departments the actions of which can be shrouded in mystery. There are myriads of ways in which vague, and even valid rules can be misapplied.

The cultural climate at an institution can be censorious in nature regardless of what official policies say. Critics have decried the problem of such “social censorship” since at least the time of Tocqueville and Mill. Recently two female students at UW-Madison told a good and trustworthy colleague of mine that they have decided to never say anything in class because they fear being bullied or discriminated against given the present climate of intolerance of views deemed insufficiently “progressive.” They said the goal posts of what is acceptable are constantly changing, and that several of their friends have made the same decision.

Finally, FIRE awards an institution a “Green Light” grade if it finds that its policies do not threaten free speech on campus. However, as just stressed and as FIRE wisely points out, “A green light rating does not necessarily indicate that a school actively supports free expression in practice; it simply means that the school’s written policies do not pose a serious threat to free speech.” Such legal scholars as Jon Gould (Speak No Evil: The Triumph of Hate Speech Regulation, 2005) and Gerald Rosenberg (The Hollow Hope: Can Courts Bring about Social Change?, 2008) have shown that legal parchments are one thing, whereas actual application is another. For example, in 1992 the Supreme Court issued a ruling in that undercut the constitutional validity of the type of speech codes that began arising in the late 1980s—i.e., those that restrict offensive and “fighting words” speech based on race, gender, religion, sexual orientation, and the like. (R.A.V. v. St. Paul) The Court held that though fighting words are not normally protected by the First Amendment, such codes constituted impermissible viewpoint discrimination because they restricted offensive speech dealing with certain ideas and viewpoints, but not others. But in the wake of this important decision in 1992, the number of such codes actually increased in higher education despite the unfavorable Supreme Court ruling.

As the FIRE report points out, colleges and universities have often used their legal obligation to prevent harassment as a pretext to enact or apply a standard of harassment that goes well beyond what the Supreme Court has concluded constitutes actionable harassment—the old wolf in sheep’s clothing move. Making matters worse, the Department of Education has illegitimately required schools to enforce an entirely subjective standard of harassment that goes way beyond Supreme Court standards, and which was never promulgated according to standard rules of administrative procedure.

It is important to bear in mind that a having a Green Light policy can be different from having no policy whatsoever. For example, FIRE recently gave a Green Light to the “Bias Reporting Policy” of UW-Madison after the university reformed its policy in a favorable direction. In essence, the university finally made it clear that the policy did not apply to protected speech in any form. But it still maintains a policy rather than going without one. The same point applies to harassment policies, which schools are required to enforce under federal aegis. But to earn a Green Light, the policies must clearly distinguish genuine harassment from protected speech in line with Supreme Court precedent. But in many cases, earning a Green Light was due to eliminating a code in the relevant domain.

The Less Good News

While many readers will take heart from these encouraging trends regarding the surface meaning of words, others will no doubt raise skeptical voices for at least two reasons. Of course, the FIRE report is well aware of these concerns, and pays considerable attention to them. First, as mentioned, many schools still possess unconstitutional or unlawful codes. And whereas many codes on their face are limited to the long-standing exceptions to speech according to Supreme Court jurisprudence—e.g., fighting words, obscenity, libel, threats, harassment, direct incitement to imminent unlawful action, violations of privacy), at many schools, in FIRE’s words,

The exceptions are often misapplied and abused by universities to punish constitutionally protected speech. There are instances where the written policy at issue may be constitutional—for example, a prohibition on “incitement”—but its application may not be. In other instances, a written policy will purport to be a legitimate ban on a category of unprotected speech like harassment or true threats, but (either deliberately or through poor drafting) will encompass protected speech as well. Therefore, it is important to understand what these narrow exceptions to free speech actually mean in order to recognize when they are being misapplied.

Second, readers will wonder about the rise of new censorial activities and measures that have notoriously beset higher education over the course of the last couple of years. The list is now well known: the emergent “trigger warning movement;” the burgeoning quests to institute “safe spaces” from unwanted discourse and ideas; the growing list of speakers “dis-invited” from speaking because their ideas are deemed undesirable by activist groups who hold undue sway; improper “bias-reporting” policies that encourage Orwellian informing on individuals whose speech is simply considered offensive; disrupting speakers deemed unacceptable while claiming that such disruption is itself a form of free speech (it is one thing to protest a speaker, yet another thing to disrupt his or her ability to speak); mandatory sensitivity training for students and faculty; anti-bullying policies; internet use policies; policies regarding “respect, tolerance, and civility;” policies on public speeches, including high “security fees;” public speech limited to narrow “free speech zones,” etc. FIRE is obviously aware of these trends, and the 2017 report focuses mainly on the problems associated with the new Bias Reporting schemes.

In some telling respects, some of these new policies do not overtly call for censorship, as the old speech codes did. Rather, they are meant to “educate” the academic community about the negative impact that certain types of speech can have. Such educational schemes can be consistent with the goals of higher education if done right and in the right spirit. There is nothing intrinsically wrong with educating students and others about the potential impacts of speech, so long as such educational endeavors are not smokescreens for informal or formal ideological bullying. However, given the climates on many campuses today, such educational efforts too often amount to speech codes in disguise. The new policies may not be overt speech codes, but they can accomplish censorship by other means.

Several colleagues around the country have asked me in recent times if they have a “legal case” against new mandatory sensitivity training requirements on their campuses. In some cases, the programs bear an unmistakable ideological bias, even in their official justifications. My colleagues have said they would feel intellectually and morally compromised or tainted if they were to attend. But it is exceedingly difficult to sue such programs because institutions do have the right to require such things as pedagogical training or the reading of pedagogical material. Based on academic freedom principles—which too many sensitivity bureaucrats do not fathom or respect—they bear an obligation to NOT make these requirements ideological and bullying. But this obligation is more informal than formal, so the main remedy is professional resistance and counter-speech.

The rise of these new types of policies strongly indicates an important background trend: campus authorities have discovered ways to limit honest expression of ideas through means that are less overtly censorious than the old speech codes. Thus, progress regarding the wording of codes can be undermined by bureaucratic methods that cut in the other direction.

Not surprisingly, the FIRE report does not shy away from acknowledging and criticizing new forms of ideological browbeating:

While there have been positive developments, the climate for free speech on campus is in many ways more precarious than ever. As this report will explore in greater depth, bias reporting systems—Orwellian programs under which students are asked to report on one another for offensive speech—are proliferating at campuses nationwide. Student demands for censorship are increasingly common. The federal government continues to press a definition of sexual harassment that encompasses not only actual harassment but also constitutionally protected speech. And an unacceptable number of universities continue to punish students and faculty members for constitutionally protected speech and expression.

It is imperative, therefore, that those who care about free speech on campus continue to stay vigilant. The decrease in speech codes and the proliferation of free speech policy statements are the result of the relentless work of free speech advocates at FIRE and elsewhere. We must keep up that work to avoid losing ground amid the current of hostility towards free speech that is very much alive on campus and elsewhere.

What Is To Be Done? 

Given its recognition of the problems stirring beneath the surface of the law, FIRE concludes its report with a call for principled action. Students and faculty members can legally challenge codes that violate the First Amendment or contractual obligations. For example, there are presently over 100 cases pending in court challenging the Department of Education on grounds of due process or free speech. And when the law does not avail, political pressure on campus can make a difference, so long as faculty and students organize and take stands. “The suppression of free speech at American universities is a matter of great national concern. But supporters of liberty should take heart: While many colleges and universities might seem at times to believe that they exist in a vacuum, the truth is that neither our nation’s courts nor its citizens look favorably upon speech codes or other restrictions on basic freedoms.”

It is time to organize on campus and to take the concern for campus freedom to the public at large. Expanding the scope of a conflict is a well-recognized strategic move that broadens the base of allies, thereby strengthening a movement. (See Private Power and American Democracy, by Grant McConnell, 1966. McConnell builds on the political logic of James Madison in Federalist #10.) The work of such groups as FIRE and IHS are examples of this strategic understanding and project.

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