Last December saw another predictable report from the Foundation for Individual Rights in Education, a self-described watchdog group, highlighting how higher education is supposedly under siege from a politically correct plague of so-called hate-speech codes. In that report, FIRE declared that as many as 96 percent of top-ranked colleges “prohibit speech that, outside the borders of campus, is protected by the First Amendment to the U.S. Constitution.”
FIRE has made similar assertions almost since its inception, but surprisingly few people or groups have ever challenged its conclusions or methods. Bolstering its claim with the polemic The Shadow University (Free Press, 1998) — the response to which encouraged Alan Charles Kors and Harvey A. Silverglate to found FIRE — the group and its compatriots have managed to convince academics and outside critics that a culture of political correctness has taken over higher education.
But contrary to the group’s contention, academic freedom and open discourse are not seriously threatened at American colleges. If anything, academe does a better job of preserving free speech than do its cousins in the service of an open civil society, the news media and online service providers. Indeed, FIRE largely fails to explain how it reaches its overly broad conclusions, and a sober look at the group’s charges finds an increasingly ideological organization that exaggerates the facts to make political hay.
Academe deserves better. Not only are most college speech policies constitutional, but also many of the antidiscrimination policies that FIRE targets actually protect higher-education institutions — and by extension academic freedom and opportunity.
FIRE leveled similar charges in 2003, as it was planning to create a new Web site to rate the constitutional harm of college speech policies. A reporter at The Chronicle sent me examples of several institutions’ policies that FIRE was prepared to label with a “red” rating — meaning a policy “clearly and substantially restricts freedom of speech.” Then, as now, FIRE exaggerated, failing to distinguish enforceable rules from exhortative statements, confusing examples with definitions, and taking statements out of context.
FIRE’s attacks got so bad that the University of Michigan at Ann Arbor, one of FIRE’s targets, had to dedicate three staff members to deflecting them. As a university spokesman explained to a reporter, “Most if not all of the quotes listed by FIRE are seriously misleading, in that they are taken out of context. In some cases the next sentence [in the policy] modifies the meaning significantly.”
Consider FIRE’s objection at the time to Michigan’s “Policy and Guidelines Regarding Electronic Access to Potentially Offensive Material,” in which FIRE criticized the sentence that said, “Individuals should not be unwittingly exposed to offensive material by the deliberate and knowing acts of others.” However, the policy also states: “Freedom of expression and an open environment for sharing information are valued, encouraged, supported, and protected at the University of Michigan. Censorship is incompatible with the goals of an institution of higher education.” Indeed, the material in Michigan’s policy that immediately follows the language noted by FIRE says: “The University is a community of individuals with diverse values, beliefs, and sensitivities. Individuals must be allowed to choose what they wish to access for their own purposes.” FIRE, however, did not provide the modifying words.
Several years ago, I conducted an in-depth study of hate-speech codes at 100 colleges, applying categories previously tested by Vanderbilt University’s First Amendment Center. That project, using random sampling, found that 46 percent of four-year institutions had policies that could be used to restrict “hate speech,” meaning verbal attacks that target others on the basis of their immutable characteristics. However, only 23 percent of institutions not FIRE’s 96 percent — had rules that were inconsistent with the First Amendment. And even that number had to be narrowed: Only public institutions (and private colleges in California) are held to the First Amendment. Considered more precisely, just 9 percent of the institutions had unconstitutional speech policies, according to my study.
But don’t take my word for it. Robert M. O’Neil, director of the Thomas Jefferson Center for the Protection of Free Expression and former president of the University of Virginia, has also contested FIRE’s claims and estimates. “I just can’t believe there are anything like that number of genuine speech codes,” O’Neil told The Chronicle several years ago.
Even Judge Avern Cohn, senior U.S. District Court judge from the Eastern District of Michigan, who overturned the University of Michigan’s speech code in 1989 after the American Civil Liberties Union challenged it as unconstitutionally vague and overly broad, has criticized the FIRE founders Kors and Silverglate for the research behind The Shadow University. “If one is confined to a single word to describe the text,” Cohn writes, “the choice would fall somewhere among diatribe, jeremiad, philippic, and polemic. If one takes a good look at The Shadow University’s Web site, the word would be self-aggrandizement.”
It might be understandable that an advocacy organization would inflate its findings to generate attention, but in FIRE’s case, its behavior is hypocritical. FIRE points its finger at academe, claiming that colleges fail to live up to their lofty aims of free speech, but then FIRE isn’t intellectually honest about what the facts say — or do not say — in service of its increasingly ideological charge.
Nor does FIRE seem to know what it stands for these days. FIRE claims to protect speech rights and academic freedom on campuses, and yet the group shows an amazing inconsistency in the restrictions it finds troublesome. A few years ago, FIRE’s then executive director, Thor L. Halvorssen, claimed that FIRE did not oppose private-college speech codes if the rule makers were honest about them. By that, Halvorssen meant that FIRE was prepared to give private colleges a pass because they are free to “set up their own systems” of speech regulation. Public institutions, by contrast, are bound by the First Amendment, making their restrictive speech codes “manifestly unconstitutional” in FIRE’s view.
That dichotomy accurately tracks the law, but it does not explain FIRE’s behavior, which would better be described as a political strategy to generate attention in the news media. The group has not confined itself to the “legal technicalities” of college hate-speech policies. Rather, it revels in any opportunity — whether at public or private institutions — to challenge what it considers “thought control” from self-appointed, and not inconsequentially liberal, academic censors.
One need only look at FIRE’s Web site. During the first week of February this year, half of the top stories involved private institutions — which FIRE’s former leader said should be permitted to “set up their own systems” of speech regulation. FIRE featured Brown, Johns Hopkins, and Pace Universities, two of which were excoriated for alleged discrimination against Christian students.
If FIRE is going to criticize private as well as public institutions — and especially if it has taken on the cause of religious liberty — where is the group’s outrage when sectarian institutions restrict speech or deny academic freedom? To be sure, FIRE recognizes that some private colleges hold “a certain set of values above a commitment to free speech,” but there are many cases in which sectarian colleges have silenced students or faculty members apart from their denomination’s canons. Why do we not see press releases, except in the rarest cases, from FIRE championing its advocacy of those victims?
The cases are definitely there. For years the American Association of University Professors has documented examples of religious colleges that have fired faculty members for failing to sign a loyalty oath to the institution’s president, that have not only barred a professor’s speech on theological matters but have also forbade him or her from teaching relevant secular topics, and that have failed to renew otherwise qualified professors who — while agreeing with their institution’s position against homosexuality — have expressed “concern about violence against homosexuals.” Just this year, we learned of a religious institution that fired a faculty member because, she claims, the president concluded that women could not teach Hebrew in a school of theology. Yet FIRE has remained conspicuously silent on such matters.
Why is that? It cannot be because the institutions are private; FIRE’s own Web site belies any public-private distinction in its advocacy. The answer, regretfully, appears ideological. Elite private institutions “discriminating” against Christian students make better headlines, and may appeal more to FIRE’s donor base, than championing so-called dissidents who challenge their institutions’ leaders. Yet both implicate free speech and academic freedom.
For almost a century now, academe has benefited from the AAUP’s good fight on such cases. Despite attempts to portray itself as the logical heir to the AAUP, however, FIRE has become an ideological mouthpiece for the anti-PC crowd. In the past, I have had the utmost respect for many of FIRE’s leaders, but lately the group seems to have taken the same tack as its compatriot, David Horowitz, who acknowledges that part of his act is to be “polemical.”
Where FIRE’s estimates are exaggerated, the reason can often be traced to the group’s categorization of sexual-harassment policies as “speech codes.” FIRE apparently fails to recognize that American constitutional law has changed in the last 20 years to prohibit, as discrimination, sexually harassing speech. With the passage of Title VII of the Civil Rights Act, and extensive litigation following it, both federal and state courts have found employers liable for their employees’ “obscene propositions, sexual vulgarity, ... racial jokes, slurs, and other statements deemed derogatory to minorities,” as Kingsley R. Browne, a professor of law at Wayne State University, noted in the Ohio State Law Journal in 1991.
Indeed, the Supreme Court crafted a special category for sexual-harassment claims in the 1992 case of R.A.V. v. St. Paul, essentially saying that sexist or sexually degrading expression could be litigated as “a proscribable class of speech ... within the reach of a statute [Title VII] directed at conduct rather than speech.” More recently courts have created a private right of action under Title IX to apply sexual-harassment standards to academe. In fact, in 1999, the Supreme Court held that a private cause of action could stand under Title IX when “student-on-student ... harassment was so severe, pervasive, and objectively offensive that it effectively barred the victim’s access to an educational opportunity or benefit.”
Colleges are now in a potential Catch-22 situation with regard to their hate-speech policies. Groups like FIRE demand that institutions eliminate such measures. Yet the existence of those policies provides a defense to a Title VII or IX lawsuit for a hostile work or educational environment. Consider a college that eliminates a hate-speech policy and then, in a separate case, is sued for sexual or racial harassment. One hardly needs much imagination to envision the plaintiff’s cross-examination of the college’s officials, using the removal of the speech policy as a sign that the institution was no longer committed to equality on its campus.
For that matter, policies that prohibit harassment or discrimination serve important purposes, helping to ensure that the 14th Amendment’s ideal of equal opportunity is protected on campuses. Just this month, we read of new research showing that bigotry remains common among college students. In their forthcoming book, Two-Faced Racism: Whites in the Backstage and Frontstage (Routledge), Leslie Houts Picca, an assistant professor of sociology at the University of Dayton, and Joe R. Feagin, a professor of sociology at Texas A&M University, describe how white students, when among themselves, often accept racist comments and attitudes.
Although people should be free to think what they want, if racial or sexual animus becomes so severe or pervasive that it interferes with another’s right to education or employment, colleges should be encouraged to step in. To urge otherwise is not only unfair to the people who live and work on the campuses but also to the institutions, which could be held liable under Title VII or IX.
I am not calling for the deputizing of campus-speech police. Like many others, I value liberty and free speech. But there is a fair debate to be had on the limits of expression, especially when poisonous speech arguably threatens the rights of others. If I regularly begin my lectures by excoriating the female students for “taking the place of a man who would use the education to support his family” or chastising African-American students to “work harder because they were all affirmative-action acceptances,” I should be held accountable, as Title VII and IX suggest, for creating a hostile or intimidating environment.
Of course, college administrators will fail at times in properly distinguishing protected speech or conduct from that which the government and other public entities can restrict. That’s the nature of any line that people draw, and the courts generally have done a good job of reining in college officials when the terms or processes they use are vague or overbroad. But that does not mean that we should follow FIRE’s lead and merely punt when faced with verbal harassment or discrimination.
It’s time we all took a deep breath. It is simply not the case that “free speech no longer exists on American college campuses,” a charge made in an American Enterprise article about FIRE several years ago. There is a reason that large majorities of freshman students arrive at their institutions already believing “colleges should prohibit racist/sexist speech.” They’re developing those attitudes, before they ever set foot on a campus, from a civil society that has supported the restriction of hate speech — not from colleges that are “indoctrinating” their charges.
One sees such general attitudes in public-opinion surveys. Last year, for example, the First Amendment Center found that 55 percent of respondents in a national survey did not believe that the First Amendment right of free speech should allow “people ... to say things in public that might be offensive to racial groups.”
Our news media reflect such norms as well. Newspapers refuse to print the “N word” or pictures of racist Native American mascots. For that matter, upward of half of the top-circulation newspapers in the country have a policy, whether written or informally understood, that prohibits advertising with “hate speech.” When asked to define the term, advertising managers sound like the very administrators that FIRE derides, saying they prohibit “offensive” or “derogatory” language directed at a person or group because of race, gender, ethnicity, or religion.
The journalist Anna Quindlen has noted that news media “do not make social policy, only reflect it once it moves convincingly from the fringe into the mainstream.” The process is the same with hate-speech regulation. Colleges are not an exceptional environment, engaged in some wild attempt to restrict free expression in the name of liberal thought control. They are social institutions, similar to other influential bodies in civil society, reflecting a popular norm and enforcing the prevailing law with respect to harassment and discrimination.
FIRE may not like that, and its leaders may justifiably object when an individual institution occasionally goes too far in enforcement. But they are wrong about their overall point. More than other institutions, colleges do permit free speech, and they do protect academic freedom.
We in academe should take pride in that, rather than having to fight a continual rear-guard battle against ideological opportunists seeking to make cheap political points. FIRE has burned long enough. It’s time we put it out.
Jon B. Gould is an associate professor at George Mason University and author of Speak No Evil: The Triumph of Hate Speech Regulation (University of Chicago Press, 2005).
http://chronicle.com Section: The Chronicle Review Volume 53, Issue 33, Page B13