On this blog, university speech codes and the evils associated with them are a frequent topic.  Our website outlines many the ways that these policies violate the First Amendment, and God has repeatedly blessed our efforts to eliminate these restrictions on free speech with success.  Not only have federal courts struck down these speech codes in places like California, Washington, Georgia, and Pennsylvania, but our victories even have also impacted other governmental bodies.

But our friends at FIRE recently unveiled a new way of illustrating the problems with speech codes—a video replete with whiteboard illustrations.  Lasting just over five minutes, Campus Censorship and the End of American Debate outlines the prevalence of speech codes (over 65% of universities have them) and gives examples of the absurd and biased way these speech codes are enforced to silence conservative students.  It also discusses the long-term harms that speech codes produce.  Not only do they eliminate the freedom of students to hold and articulate unpopular views, but the speech code mentality has also at times leeched out into society at large, cutting off debate and polarizing our civil discourse. 

How do they cover all this material in five minutes?  Well, you will have to watch this entertaining and informative video to find out.  Afterwards, contact us to see if your college or university is among the 65% and to learn what you can do about it.

FIRE has released its second annual survey of America’s Best Colleges for Free Speech.  This year, seven colleges receive the rare distinction of being ivory towers that welcome free expression.  FIRE’s President Greg Lukianoff describes the methodology and the results in the Huffington Post.  Be sure to take a look at his article, but for those who cannot wait, here’s FIRE’s list (in no particular order):

• James Madison University
• The College of William and Mary
• University of Mississippi
• Mississippi State University
• University of Tennessee – Knoxville
• University of Virginia
• University of Pennsylvania

Interestingly, Lukianoff points out a trend that when one college revises its policies to be more welcoming to free expression, other colleges in the state begin to do the same thing.  He’s right.  No one wants to be seen as the lone censor of free speech.  For example, in Virginia, we were involved in Rosenberger v. University of Virginia at the U.S. Supreme Court, which ended a discriminatory policy banning religious student groups getting equal access to student fees and campus facilities.  And earlier this year, we scored another win in Virginia when Virginia Tech ended a similar ban on religious student groups accessing student fees.  Colleges follow the free speech leader.

Did your college not make FIRE’s list?  Perhaps you can be the catalyst to encourage your college to set the trend in your state.  Contact us and let us know if you’ve had trouble expressing your beliefs on campus.

What speech would be “controversial” on your campus?  If you attend a public university, the odds are good that “controversial” and “Christian” or “pro-life” are likely synonymous.  So if the University could impose greater restrictions on your speech just because they deem your views “controversial,” this would provide a nice and easy way to marginalize Christian, pro-life or other conservative speech.  The mere fact that your expression would draw hecklers angry that you dare upset the monolithic liberalism and anti-Christian views on many university campuses would be justification for the school to restrict your speech.

If you attend the University of Massachusetts-Amherst this isn’t a hypothetical, this was school policy.  UMass-Amherst earned the Foundation for Individual Rights in Education’s Speech Code of the Year for 2010 for this policy.  Not only did UMass-Amherst impose greater restrictions on rallies where it deemed the views “controversial,” but it imposed a 48 hour pre-approval policy for even non-controversial rallies (7 days for “controversial” ones) and allowed administrators unbridled discretion to approve or deny these rallies for any reason.  And UMass required “controversial” rally organizers to designate six students to form a security team – placing these students at risk from their opponents and effectively preventing small student groups from holding such rallies.

In response to a letter on behalf of the UMass Students for Life from ADF Allied Attorney Mari Chamberlain of Jacobi, Chamberlain, LLP in Lexington, Massachusetts, UMass-Amherst has eliminated these unconstitutional policies.  On Wednesday UMass confirmed that it has now eliminated the controversial/noncontroversial rally distinction altogether, now only asks that space be reserved 24 hours in advance of any “rally” and eliminated its requirement that students place themselves in danger by providing a six person student security team.   This is a significant improvement on UMass’s speech policies that had ranked among the worst in the country.

Problems still remain.  Among them, UMass still doesn’t define “rallies” well, making it unclear whether a single student wishing to speak on campus must comply with this policy.  And rallies – whatever that means – are still limited to a single location, the steps of the Student Union building.  We are following up on these remaining concerns, but it’s still a good week for free speech at UMass.

The First Amendment has been fairly competitive this bowl season.  Through games of December 27 I am 5-4 in my picks for the college football bowl games based solely on the universities’ respect for the First Amendment..  That’s 55% if you’re scoring at home.  Perhaps I’m on to something here.  As the actual on-the-field games improve, let’s take a look at how the next few days of bowl games would play out if the First Amendment had anything to say about it (for full “rules” of the picks below see the prior post linked above).  If not linked directly, references to speech codes can be found at FIRE’s website.  Also see references to ongoing or past First Amendment violations at ADF’s Map of Cases in Your Area. 

Champs Sports Bowl: West Virginia v. North Carolina State – NC State has some problems, including prohibiting student use of religious or political quotes in their own email signature lines and requiring advance permission for any “assembly” on campus (apparently even for a two person “assembly.)”  But per the rules for this contest West Virginia’s bad practice trumps these NC St. policies.  West Virginia has a long history of trampling students’ First Amendment rights – including a court battle defending the limitation of student speech to a couple of tiny “speech zones” (abandoned after a Rutherford Institute lawsuit and public pressure from FIRE and others in 2002).  West Virginia also maintains a red light speech code.  Pick: Pack. 

Insight Bowl: Missouri v. Iowa – Missouri helpfully makes it explicit that its prohibition on “harassment” sweeps more broadly than the First Amendment permits – reaching activity that doesn’t affect the university’s educational environment.  Missouri does, however, get some credit for deciding to continue to allow a Christian fraternity to maintain associational freedom on campus.  Iowa also has a red light speech code, but the administration has now thrice turned back efforts of some students to deny Christian student groups associational freedom – one upping Missouri by also declaring that the University of Iowa’s own Human Rights Policy would prohibit the school from imposing the religion nondiscrimination rule to derecognize CLS as this would constitute religious discrimination.  Pick: Iowa.

Military Bowl: East Carolina v. Maryland – East Carolina prohibits students from “singling out” others on the basis of gender, race, etc.  Maryland says that any “attempt to repress [or] undermine …  any person or group constitutes a legitimate threat to the health and welfare of our community.  … [These will be] dealt with seriously.”  Both policies could easily be applied to prohibit not just true harassment or discrimination, but virtually any comment on gender or other differences a student might make.  If only the NCAA had not adopted the overtime rules eliminating ties.  Pick: Maryland in a squeaker. 

Texas Bowl: Illinois v. Baylor – Is a private Christian college unrestrained by the First Amendment and clear in its expression of its expectations to prospective students.  Illinois, however, is subject to the First Amendment as a government-funded public university.  You wouldn’t know it from the Illini’s policies and practices though.  Illinois recently famously fired a professor for explaining Catholic doctrine on marriage as part of a class he was teaching on Catholic doctrine in the University’s Department of Religion.  UI rehired him in response to ADF’s demand letter.  Pick: Sic ‘Em Bears. 

Alamo Bowl: Oklahoma State v. Arizona – OSU’s yellow light speech codes v. Arizona’s red.  Arizona did eventually permit a pro-life group to be recognized after initially requiring the group to accept pro-abortion members as a consequence of recognition, but it’s a testament to the poor state of the First Amendment on campuses that this would be controversial.  Pick: OSU.

Armed Forces Bowl: Army v. SMU – A military academy against a private university.  Let’s just let this one play out on the field.  But if I have to pick… Go Army. 

Pinstripe Bowl: Kansas St. v. Syracuse – Both are red light schools.  And although more should be expected of the public Kansas State, it’s hard to pick Syracuse right now given its ongoing threatened expulsion of a law student for a satirical law blog.  Kansas State has its own problematic policies, like imposing additional costs on student organization activities that “may be controversial in nature.”  But I’m picking against Syracuse’s ongoing denial of free expression, not for K State.  Pick: Kansas State.

Music City Bowl: UNC v. Tennessee – Easy.  Tennessee is one of 14 schools in the country to have earned a green light from FIRE for its speech policies.  It has also purged itself of Lane Kiffin, making it easier to favor the Vols.  UNC on the other hand fought for years in an effort to deny associational freedom to a Christian fraternity, eventually buckling after a federal judge stopped the school from enforcing its unconstitutional policy.  And it still maintains a prohibition on any decorations on a student’s own dorm room door that another might find offensive on the basis of, among others, religion.  Pick: Vols.

Holiday Bowl: Nebraska v. Washington – Nebraska’s green light against Washington’s red.  And Washington’s red light is well earned.  The school once prohibited education majors from student teaching at religious schools until ADF allies filed a lawsuit.  Pick: Cornhuskers. 

Next: New Years Eve and New Years Day Games…

As a UVA student (CLAS ’97) I regularly walked under the tablet on the south entrance to Old Cabell Hall that stated: “For here we are not afraid to follow truth, nor to tolerate any error so long as reason is left free to combat it.” For much of the time I attended UVA this seemed out of place. After all, Mr. Jefferson’s University was staunchly defending a policy that prohibited religious student groups from receiving the same access to student activity funding that all other groups received, resulting in the Supreme Court’s Rosenberger decision against the University in 1995.  But today that quote seems a little more suitable.

Of the nearly four hundred public colleges and universities whose policies are assessed by the Foundation for Individual Rights in Education (FIRE), the University of Virginia is now one of 13 schools given FIRE’s coveted “green light,” meaning that the school’s policies respect constitutionally protected student speech. UVA, I hasten to note, is now the highest ranking (per US News & World Report) public university to achieve this standard.  Mr. Jefferson would be proud.
FIRE provides all the details about the work that UVA did to move in a few short months from a “red light” school to a “green light” school under its new President Teresa Sullivan. UVA’s revision of its policies to protect student speech demonstrates to other universities that this can be done. If UVA can eliminate its speech codes and defend student speech on grounds, surely other schools can do the same thing. I’m looking at you Virginia Polytechnic Institute and State University (yellow light). You too UNC – Chapel Hill and Duke (also see link).

We are rarely applauding schools for their efforts to protect student speech here. UVA finally gives us a reason to. (Now don’t blow it Hoos).