If you defend free speech, you expect criticism. Do so in a principled manner, and there’s no safe haven.
One moment you’re “amazing and principled,” advocating against mandatory diversity, equity, and inclusion statements for college faculty members. The next you’re “a woke-enabler” who lets “DEI admins … operate with impunity” because you oppose conservative legislatures’ restricting academic freedom.
We hear the cynical “Where’s FIRE on this?” question so often it’s become an office meme. Of course, we’re usually already on the case. Our critics simply didn’t fire up the Google machine.
It is in such an environment that the historian Jeffrey Sachs calls much of the criticism directed at the Foundation for Individual Rights and Expression “tired.” I’ve worked at the organization for a decade; I won’t disagree with that assessment. In a recent essay, Sachs seeks to advance “better criticisms.” And while he does better than most, he also misses the mark.
Don’t get me wrong — we welcome Sachs’s honest appraisal. He’s a good-faith interlocutor, and he writes clearly and capably on the issues. We’ve compared notes with him for years. We even invited him to debate whether a “campus free-speech crisis” exists. So when he, too, misunderstands our work, we must correct the record.
Below, we address his three main critiques of FIRE.
How FIRE’s speech-code rating system really works:
One project Sachs gets wrong is among our earliest and most successful. When we started our Spotlight on Speech Codes database in 2007, we assigned “green light,” “yellow light,” or “red light” ratings to hundreds of America’s top colleges based on the extent to which their written policies restrict free speech. The project, which we continue today, helps us identify and reform campus policies nationwide. Critically, our Spotlight rating system looks only at policies that apply to students. We don’t rate faculty policies.
When we started rating college policies, we found that 75 percent of top colleges were red-light institutions. This means they maintained at least one policy that both clearly and substantially restricts freedom of speech for students. Today, 18.5 percent are red-light institutions. That percentage was driven down, in part, by the symbiotic relationship of FIRE’s programming and college policies. Our policy-reform team reviews and rates policies and works with college administrators to reform poorly written ones before they are enforced against students. When they are enforced, our campus-rights advocacy team jumps in, advocating on students’ behalf. When possible, we undertake this process privately. When necessary, we do so publicly. We also consider legal options. For example, our litigation team challenged the Los Angeles Community College District’s restrictive free-speech zone in court. We won, freeing the voices of 150,000 students at nine different campuses in one fell swoop.
All along, our legislative and policy team provides air cover, working to nip unconstitutional laws in the bud and to advance legislation that will protect more student and faculty voices. It’s in analyzing our legislative work, and its relationship with our rating system, that Sachs falls short. Sachs says our Spotlight ratings are “blind to the single-most significant assault on campus free speech of the decade” — namely, policies against critical race theory, or “divisive concepts” bans, that apply to college classrooms. These include Florida’s Stop WOKE Act, which went into effect in April but is on hold after FIRE and others successfully sued to halt its enforcement, pending the outcome of our litigation. Before our lawsuit, we sent letters to nearly 40 public colleges in the state encouraging them to interpret the legislation as narrowly as possible and — where enforcement would be unconstitutional — to ignore it. No state law can authorize administrators to violate the constitutional rights of students and the faculty at public colleges.
When student and faculty rights are threatened, we are on the ground, doing the work.
We agree with Sachs. Bans like Florida’s are significant assaults on campus free speech. That’s exactly why we sued. But what Sachs fails to appreciate is that in order for the state law to be enforced against students and faculty members, its mandates must be written into campus policies and acted upon by administrators. That’s why we sent our letters to the colleges. We wanted to reach them before they wrote the law into policy.
This is the case with any law. Colleges ultimately decide how to enforce it — and they bear the costs of that decision. The First Amendment requires public colleges not to censor. Many still do. The 2020 Title IX rule passed by the Trump administration requires colleges to adopt certain due-process protections in sexual-misconduct cases. Some still don’t. As Sachs himself notes, we helped encourage the passage of a comprehensive campus free-speech bill in Tennessee. But many public Tennessee colleges nevertheless maintain restrictive speech codes.
Sachs notes that “of the 12 public universities in Florida that FIRE ranks, none receives a red-light rating for its speech policies.” True. Perhaps Florida colleges heeded our guidance to not write speech restrictions into campus policy, particularly in light of our pending litigation (the recent ruling says they can’t enforce the Stop WOKE Act anyway). Some campuses, like Florida State University, that did issue guidance on the law claimed it didn’t change campus policy and/or applied primarily to college faculty members, whose policies we don’t rate.
What’s more, when green-light institutions adopt a new, restrictive speech code, we tend to try the carrot before using the stick of downgrading their rating. We write them a letter, make them aware of the pending change, and ask if they will work with us to fix the policy so they can maintain their green-light rating. That fix can take some time. Many colleges take us up on our offer. Some, like Dartmouth College, unfortunately don’t.
One additional quibble with Sachs’s analysis is that we rate college policies over the course of a year, not all at once, as he seems to assume we do. So when our college free-speech rankings, which incorporate our speech-code ratings, are released every September, some of the data might not reflect policies recently updated in response to a particular law. Combing through 500 campuses’ policies every year is painstaking work. The FIRE lawyers who do so are incredible. But they can’t do a year’s worth of work in a month.
Abandoning the legislative playing field won’t improve campus free speech.
You can criticize the narrowness of our Spotlight ratings. You can take issue with the timing of our rating of new policies. But when student and faculty rights are threatened, we are on the ground, doing the work.
It’s odd, then, that Sachs suggests we should do less.
He argues that the “most serious criticism” of FIRE is that we should never have started engaging the legislative process. Sachs believes doing so made legislators comfortable legislating in the higher-ed space and led to them writing bills that threaten civil liberties on campus, such as some of the aforementioned anti-CRT, or divisive concepts, bills.
If only we had that much influence. The fact is, we set up our legislative and policy department in 2012 precisely because legislators were already legislating on our issues, whether we liked it or not. Critics at the time were right: We were getting to unconstitutional bills too late. They had already become law. And we didn’t yet have an in-house litigation department to challenge them. All we had was public advocacy in the form of moral suasion.
For the better part of the last two years, our lobbyists traveled the country, spending days on end away from their families fighting the very bills that Sachs says pose “the most significant assault on campus free speech of the decade.” In the vast majority of cases, our team is successful, preventing these bills from imposing bans affecting college classrooms, where they would be most unconstitutional. Where they aren’t successful, such as in Florida, our litigation team assists students and the faculty in resisting the legislation.
The situation for free speech on campus would be much worse if not for FIRE’s legislative and policy team. Unfortunately, much of its work is unseen. We don’t write press releases every time a legislator is persuaded not to do something unconstitutional.
To his credit, Sachs acknowledges as much about FIRE. “Without its intervention,” he writes, “these bills might still have passed and would almost certainly have been worse.” This is where Sachs’s “to be sure” caveat swallows his argument. All he is left with is a vague notion that legislators may never have started legislating in higher ed without our nudge in that direction.
This overstates our influence and ignores the fact that legislators routinely legislate around hot-button issues. For the past decade, campus free speech has been a prominent issue. It’s the reason FIRE grew from a roughly 15-person shop when I started in 2012 to a nearly 100-person one today.
Today, CRT is the issue du jour. And, of course, legislators are interested in it, sometimes with disastrous consequences for free speech. I’m glad we already have a well-established legislative team to fight back.
On warning colleges:
We say it all the time: If you care about the pursuit of truth, you need to protect free speech and academic freedom. But Sachs argues that we essentially abandon the playing field when private colleges do not promise these rights. He is wrong.
To understand the dispute, we need to back up for a second: Public American colleges are bound by the First Amendment to the United States Constitution. This prevents them, as government actors, from abridging freedom of speech and its corollary, academic freedom. However, private colleges are under no such obligation. They have the First Amendment right to have whatever values they wish. Most promise free speech and academic freedom because they care about the pursuit of truth. It’s hard to recruit the best faculty in the country if their right to free inquiry won’t be guaranteed under college policy.
But some private colleges do not guarantee these rights. Some are military institutions that privilege command and control over the freewheeling marketplace of ideas. Some are religious institutions that have established dogma. And while we do not do case work at these instituions because we cannot appeal to the law or campus policies, we don’t let them “fly under the radar” either, as Sachs alleges.
Brigham Young University, Hillsdale College, the U.S. Military and Naval Academies: Each of these colleges receives an explicit “warning” label from FIRE because it clearly and consistently states that it prioritizes other values over a commitment to freedom of speech. Caveat emptor: “Buyer beware.”
Sachs says we do not “evaluate” these institutions. We absolutely do. That’s how they end up with the warning label.
When these colleges demonstrate their hostility to free speech, we write articles that proclaim “this is what a warning college looks like.” When they start promising free speech — as Liberty University did back in 2016 — we get to work on the advocacy side. In 2019, we named Liberty University one of the 10 worst colleges for free speech in the country after its repeated censorship of the student newspaper.
When students and faculty at unrated or warning colleges submit credible free-speech cases to FIRE, we look for every opportunity to become involved. We scour their handbooks and websites for any mention that they protect freedom of speech. When free-speech promises appear in tension with other campus policies on, say, religious commitments, we err on the side of arguing that the college must uphold its free-speech pledges. We aren’t looking for a way out of these cases. We’re looking for a way in. For example, Oklahoma Christian University says it’s “committed to the highest ideals of Christian education.” But it also says its mission “demands freedom of inquiry and expression.” So when it fired a tenured professor for inviting to his class a gay guest speaker, who allegedly used inappropriate language, we got involved. As we noted at the time, “OC can’t have it both ways: Absent clear, consistent, and precisely defined limits on expressive freedom,” the professor’s “firing cannot stand.”
Freedom of speech and freedom of association are sometimes in tension. Since our mission defends both values, when we analyze private colleges, we do our best to determine the nature of the association and what it promises its community. We look for any opportunity to advance free-speech principles. But we respect the right of private academic institutions to have other values — even if we personally think, and sometimes say, that the decision is foolish.
We appreciate that Sachs skipped the tired arguments and gave us a chance to explain the in-depth approach to defending student and faculty rights that we’ve honed for nearly 25 years. We invite others to engage us in similarly constructive dialogue. Every day we seek to vindicate the rights of real people. That requires making difficult decisions to guide our work. I hope to have provided a brief window into how we arrive at some of those decisions — and, in doing so, answer the question, “where’s FIRE on that?”
