The Foundation for Individual Rights in Education (FIRE) has found that 49.3% of the 440 universities it surveyed maintain severely restrictive speech codes, policies that clearly and substantially prohibit protected speech. The only good news for First Amendment advocates is that the number of colleges doing so has been steadily declining.
According to FIRE, “Despite the critical importance of free speech on campus, too many universities—in policy and in practice—censor and punish students’ and faculty members’ speech and expressive activity. One way that universities do this is through the use of speech codes—policies prohibiting speech that, outside the bounds of campus, would be protected by the First Amendment.”
The CATO organization believes the problem can be traced to the “massive expansion of the bureaucratic class at universities, which officially began outnumbering the number of full-time instructors in 2005, and the rise of the ‘risk management’ industry, which makes a fortune teaching universities how to avoid lawsuits by regulating almost every aspect of student life.” The Department of Education’s Office for Civil Rights (OCR) is the federal agency, according to CATO, that has instituted a “hair trigger” that chills speech.
According to CATO, “By the late 1980s, colleges were adopting “anti-harassment” codes that restricted protected speech. In the mid-1990s, the campus speech code phenomenon converged with the expansion of federal anti-discrimination law by the Department of Education’s Office for Civil Rights. OCR encouraged and even required harassment codes, and although its guidance tried to ‘balance’ the need for these codes with the First Amendment, by the time FIRE was founded in 1999, universities were using the “federal government made me do it” excuse to justify even the most laughably unconstitutional speech codes.”
In reaction to the officially sanctioned repression of free speech, students have turned both to petitions and law suites.
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“We, the undersigned, feel that it is our duty to address certain issues that threaten the current and future well-being of Dartmouth College…the Dartmouth administration has spent its time policing student life. Buoyed by the idea that the College should support exclusionary ‘safe spaces’ that act as a barrier against uncomfortable ideas, administrators have assumed the role of paternalistic babysitters. By effectively taking sides in sensitive debates and privileging the perspectives of certain students over other…administrators have crossed the line between maintaining a learning environment that is open to all and forcing their own personal views onto the entire campus. In doing so, they have undermined the value of civility, harmed the free exchange of ideas, and performed a disservice to those students who see their time in college as preparation for success in the real world…The Greek system, which has historically provided students with a social arena relatively free from the control of administrators, has been subjected to increasingly strict administrative control as well…We believe that the administration should treat students like the legal adults they are and cease chipping away at free speech, free thought, and free association…”
The most recent lawsuit was filed by the Alliance Defendng Freedom (ADF) on May 19, on behalf of Young America’s Foundation, California State University-Los Angeles Young Americans for Freedom, columnist Ben Shapiro, and a CSU-LA student, challenging what they perceive to be the unconstitutional policies and practices of the university.
According to ADF, “Shapiro was scheduled to give a presentation entitled ‘When Diversity Becomes a Problem’ at CSU-LA on Feb. 25, as part of a free speech event organized by YAF. University officials first attempted to shut down the event. When those efforts failed, professors helped incite a mob of protestors to block entry to the venue… [they] flooded the university’s Student Union and physically blocked access to the theater where Shapiro was scheduled to speak… CSU-LA unilaterally decided what ideas are permissible, in a flagrant violation of the First Amendment, and even allowed an aggressive mob to menace free speech supporters,” said ADF Senior Counsel David Hacker. ‘The defendants’ actions violated numerous university policies, as well as state and local laws. By blocking access to the event, the protestors created a serious safety hazard and denied our clients’ fundamental rights to free speech, due process, and equal protection of law.”
ADF filed the lawsuit, Young America’s Foundation v. Covino, in the U.S. District Court for the Central District of California.