Research Paper – Julie Martin

The Limits of Free Speech in Higher Education

Are students, faculty, and administrators free to speak their mind on campus? Much has been made of the restrictions of expressing one's thoughts on the college campus. Are First Amendment rights still valid in higher education? Measuring the importance of the right to free speech in one's day-to-day life can prove difficult to quantify. The First Amendment to the constitution which guarantees that "Congress shall make no law… abridging the freedom of speech" (US Const., amend. I) is an abstract idea, rarely discussed outside of the legal profession. But, hopefully it is frequently discussed on the college campus. Over the course of the history of the United States, the definition of what constitutes free speech, and more importantly what restrictions are placed on this right, has been in flux. There has been an ebb and flow between society's limits of permissiveness and restriction. These ebbs and flows invite conflict. Since the establishment of the United States through the middle of the 20^th century, the free and open exchange of ideas within the confines of colleges and universities was generally exempt from the restrictions that were placed on the free speech rights of the non-academic world.

"Universities have a fiduciary obligation to promote respect for dissenting thought and freedom of inquiry and to instill the intellectual skills that foster critical, independent thinking" (Pelikan 48). In fulfilling that obligation, the college campuses provide a bellwether for the democratic health of the larger society. However, over the past 20 years there has been a noticeable increase in restrictions on the free speech heritage of the college campus. Will this relatively recent phenomenon self-adjust, or are these changes more permanent?

Defining Free Speech

The right to express one's views is codified within the First Amendment to the U. S. Constitution. Amendments to the original constitution were introduced by James Madison on June 8, 1789 just one year after its ratification by Congress. With little debate, and with few literal changes to Madison's initial proposal, these amendments became the Federal Bill of Rights (Schwartz 1006). "These first 10 amendments went into effect on December 15, 1791 when the State of Virginia ratified it, giving the bill the majority of ratifying states required to protect citizens from the power of the federal government" (The First Amendment Center).

Regarding the freedom of speech clause, Madison's primary reasoning was to protect a citizen's right to speak out against an oppressive government. Many of his contemporaries had lost property, and even their lives, for speaking out against the British crown. Now the citizens of the new nation had the legal right to speak freely. This right extended beyond political speech and certainly included the university environment. For nearly 200 years since the ratification of the Bill of Rights, censorship and restrictions on expression of ideas in the academic world usually followed a pattern. In Whose Ox is Gored? Free Speech, the War on Terror and the Indivisibility of Rights, Donald A. Downs identifies that pattern (Downs). Censorship during that period was imposed on the academic world from the outside and the censors were generally aligned with the conservative political faction of the day.

Introducing Progressive Censorship

By the second half of the 1980's "a different kind of threat to free speech, academic freedom, and civil liberty [had] already gained a foothold in higher education" (Downs 72). These threats included introduction of speech codes, anti-harassment codes, orientation programs, and new approaches to adjudicating misconduct (Downs 73). The original purpose of these speech codes and free speech zones was well-meaning. Protection and nurturing of newly diverse campus populations was and is a noble cause. However, to civil libertarians the tools used to foster the intended environment had unintended consequences.

The term politically correct had entered the mainstream American vocabulary by 1990. Allan Bloom's surprise bestseller, "The Closing of the American Mind" brought the concept to the fore of the academic world (Aiex). Now restrictions on speech were being initiated from within the college campus, and the censors were aligned with more traditional liberal political views. The use of speech codes to promote social justice issues is labeled progressive censorship by its detractors. The very groups that had been the target of censorship for two centuries were now becoming the censors.

Some Contemporary Case Studies

Before looking at some examples of progressive censorship, it is helpful to bring up a landmark case that set a benchmark for freedom of expression by students in a critical period before the development of political correctness.

In 1965, three public school students in Des Moines, Iowa were suspended from school for wearing black armbands in protest of the Government's policy in Vietnam. The students brought suit against the local school board. The complaint was dismissed by the District Court. The case eventually was heard by the U.S. Supreme Court. In the 1969 case of Tinker v. Des Moines Independent Community School District, 303 US 503, 1969, the court held that the First Amendment rights of the students had been violated. In making their decision, the court wrote that students "do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate" (Hudson 5). This concept of retaining one's rights once inside the "schoolhouse gate" is often used when analyzing student speech and expression cases. Two facts should be noted here. First, this case involved a public secondary school. Much of the contemporary debate over progressive censorship is centered on universities; both public and private. Second, the timing of the Tinker case was coincident with a high water mark for social conflict and activism in American history. Argument could be made that the volatile social climate affected the process and outcome of this case.

The second half of the 1980's saw a precipitous rise in the number of physical, verbal, and threatening attacks on college campuses. These attacks were motivated by differences in race, gender, religion, and sexual orientation. At the University of Michigan, a campus group called the United Coalition Against Racism threatened to bring suit against the University "for not maintaining or creating a non-racist, non-violent atmosphere on campus" (Hanson 2). By April of 1989 two years after the threatened law suit, the University's Regents had enacted a formal policy meant to identify threatening speech, and to bring swift and sure punishment to the perpetrators of the attacks. Later that year, a student under the chosen name of John Doe challenged the speech codes under the grounds that it could bring sanction against some of his academic work in the field of genetic traits of ethnic groups. A federal circuit judge ruled in favor of Doe. His ruling stated the speech policies were too vague and overly broad (Hanson 3). The judge ruled that the university could "not proscribe speech simply because it was found to be offensive" (Hanson 3).

Doe v. Michigan was a widely publicized case, receiving media attention even outside of the academic and legal worlds. It had basically held that broad university speech codes were unconstitutional. This did not have the expected effect on campus speech codes.

The proliferation of progressive speech codes continued for another decade. In another well publicized case in 2005, Lawrence Summers, then President of Harvard University made comments during an academic conference to the effect that there may be some innate differences between men and women that result in fewer women than men succeeding in careers in the fields of math or science. Within two months, "the Members of Harvard's Faculty of Arts and Sciences passed a vote of no confidence in Lawrence H. Summers, dealing a stunning rebuke to the president of one of the world's top universities" (Abel). In an article he wrote for The Independent Institute entitled "Free Speech on Campus: Under Attack from Both Directions?", Professor Donald Downs summarized the state of progressive censorship as follows, "That the faculty of America's most renowned university considered the enforcement of a politically correct viewpoint more important than respect for free thought and the honest pursuit of truth speaks volumes about the status of free speech and academic freedom in higher education" (D. A. Downs).

A New Balance in Controlling Speech on Campus

After two decades, has the wave of political correctness crested? If not, at least there now exists a significant counter-force. A prime example of such a balancing movement which represents the First Amendment rights of individuals in higher education is the Foundation for Individual Rights in Education (FIRE). FIRE provides legal and educational programs in support of individual rights in the college and university community. Their primary concern is with speech codes and restrictions on freedom of expression on campuses across the United States. FIRE was founded by Alan Charles Kors and Harvey A. Silvergate. After co-authoring The Shadow University: The Betrayal of Liberty on America's Campuses, in 1998, Kors and Silvergate were flooded with hundreds of requests for support. They created the foundation in response to those requests (Foundation for Individual Rights in Education).

One of the most interesting features of the FIRE website is the Spotlight. This feature maintains a scorecard measuring the state of individual rights and liberties for many of America's campuses ( Foundation for Individual Rights in Education). Institutions earn a green, yellow, or red score based on a review of their formal policies on speech, expression and due process. Prospective students concerned with this issue can easily review the track record of a chosen school.

Summary

In the 1980's and 1990's the forces of political correctness appeared to have stepped over some ill-defined boundary. During that period the freedom to speak out on sensitive issues without fear of undue reprisal became restricted on college campuses. There are plenty of cases that would demonstrate that this situation is still active today. Despite this censorship, this paper has identified two reasons to believe that the college campus is still an ideal place for exploration and expression of ideas. The first is that when an individual feels that their rights have been suppressed, if they have the determination and resources to bring their case before the judiciary, their First Amendment rights are usually upheld. The second is that an effective counter-balance to progressive censorship is strong and growing (e.g. FIRE). As stated by the abolitionist Wendell Phillips in a speech before the Massachusetts Antislavery Society in 1852, "Eternal vigilance is the price of liberty" (Freedom Keys).

Works Cited

 

Abel David and Marcella Bombardieri. "Summers Gets Vote of No Confidence." Boston Globe. Boston, 16 March 2005.

Aiex, Nola Kortner. "Politically Correct on Campus. ERIC Digest." 1996. ERICDigests.org. 25 April 2008 <http://www.ericdigests.org/1996-3/campus.htm>.

Downs, Donald A. "Whose Oz is Gored? Free Speech, the War on Terror, and the Indivisibility of Rights." The Good Society Volume 14.Number 1-2 (2005): 72-79.

Downs, Donald A. "Free Speech on Campus: Under Attack from Both Directions?" 28 March 2005. The Independent Institute. 25 April 2008 <http://www.independent.org/newsroom/article.asp?id=1484>.

Foundation for Individual Rights in Education. Fire - About Fire. 25 April 2008 <http://www.thefire.org/index.php/article/4851.html?PHPSESSID=4dc8d1c22bfdf7c36c85a170cd44f429>.

Foundation for Individual Rights in Education. FIRE - Welcome to Fire Spotlight. 25 April 2008 <http://www.thefire.org/index.php/article/5826.html>.

Freedom Keys. Eternal Vigilance is the Price of Liberty. 25 April 2008 <http://freedomkeys.com/vigil.htm>.

 

Hanson, Jim. "University Hate Speech Code: Toward an Approach Restricting Verbal Attack." 17 November 1995. ERICDigest.org. 25 April 2008 <http://eric.ed.gov/ERICDocs/data/ericdocs2sql/content_storage_01/0000019b/80/14/62/7f.pdf>.

Hudson, David Jr. "The Silencing of Student Voices." 2003. First Amendment Center Online. 25 April 2008 <http://www.firstamendmentcenter.org/pdf/Silencing.intro.pdf>.

Pelikan, Jaroslav. The idea of the University: A Reexamination. New Haven: Yale University Press, 1992.

Schwartz, Bernard. The Bill of Rights: A Documentary History. New York: McGraw Hill, 1971.

The First Amendment Center. About the First Amendment. 25 April 2008 <http://www.firstamendmentcenter.org/about.aspx?item=about_firstamd>.