SPEECH CODES REMAIN UNDER ATTACK

Tim Burke, Manley Burke, tburke@manleyburke.com

The Foundation for Individual Rights in Education (FIRE) has launched a campaign to eliminate campus speech codes.  While acknowledging that few universities today maintain what they label as “speech codes,” FIRE defines speech codes as “any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech.”

To achieve their goal, FIRE has launched a series of lawsuits against universities that FIRE perceives to be restricting speech.  In the first of those lawsuits, FIRE sued Shippensburg University of Pennsylvania, challenging a student code of conduct that, according to a report in The Chronicle of Higher Education of May 23, 2003, states that speech that is ‛inflammatory, demeaning, or harmful toward others is not deserving of protection.”

A second suit filed by FIRE against Texas Tech University challenges restrictions on freedom of speech, including requirements to either restrict activities to the “free speech Gazebo” or obtain permission six working days in advance “to hold expressive activities on campus.”  The Texas Tech suit argues that the university’s restrictions are a violation of the First Amendment of the Constitution’s right to freedom of speech and freedom of assembly, as well as a violation of the due process and equal protection clauses of the Fourteenth Amendment.

In commenting generally on such restrictions Gary Pavela, the Director of Judicial Programming at the University of Maryland at College Park, pointed out in the May 23, 2003 Chronicle of Higher Education that “what administrators want to do, some of them, is to punish the kid who flies the Confederate flag or puts on an offensive skit, hoping the speech code will cover it.  But such actions, however offensive, are clearly protected under the First Amendment.”

Other university representatives have argued that FIRE is behind the times and that colleges and universities are generally no longer enforcing speech restrictions.  Silverglate and Greg Lukianoff, a FIRE attorney, argued the opposite in the August 1, 2003 Chronicle Review of the Chronicle of Higher Education.  They cited examples of continued enforcement of what FIRE defines as “speech codes” at Harvard, Columbia University School of Law, University of Texas at Austin, Tufts University, California Polytechnic State University and Ithaca College.  Harvey A. Silverglate of FIRE and Lukianoff argue that “speech codes have proved remarkably impervious to reasoned arguments for while FIRE often can snatch individual students from the jaws of speech prosecutions, administrators rarely abandon the codes themselves.”

Speech codes or speech regulations have been a topic of debate on college campuses for decades, if not centuries. (More than 200 years ago fraternities began as literacy and debating societies.)  In 1964, on the steps of Sproul Hall at Berkeley, Mario Savio, a “student radical,” launched what became known as the Free Speech Movement.  By the ‘80s many campuses had adopted speech codes designed to encourage “politically correct” speech.  In some instances, campuses sought to punish those who engaged in conduct which may have been insensitive, boorish, or otherwise deemed to have been inappropriate.  However, in every reported case where punishment on a public university campus was challenged in court, the speech codes were struck down as being a violation of the    First Amendment of the Constitution.

Speech codes also drew sharp criticism in a National Public Radio commentary, reprinted in the September 1990 issue of Fraternal Law.  U.S. Representative Eleanor Holmes Norton, former Chair of the Equal Employment Opportunity Commission and a member of the faculty of Georgetown Law School commented:

“The university is not a microcosm of society.  It is both more and less than that.  It must be better than the rest of society – more tolerant, more open to all ideas, less willing to explain away its problems.  If the university suppresses rather than takes on bigoted speech, it betrays our faith in the efficacy of education.”

Silverglate and Lukianoff, in their recent Chronicle Review article, put it this way:

“Colleges must recognize that growth, progress and innovation require the free and occasionally outrageous exchange of views.  Without speech codes, students are more likely to interact honestly.

Having one’s beliefs challenged, is not a regrettable side effect of openness and intellectual diversity, but an essential part of the educational process and, in fact, liberty is more than simply a prerequisite for progress; it is, at the deepest level, a fundamental and indispensable way of being human.”

For fraternities and sororities, the battle over First Amendment rights remains important.  While public institutions have a right to place reasonable time, place and manner restrictions on activities on campus in order to prevent disruption of the educational mission of the school, the freedom of association rights of their students must be respected.  That includes the rights of students to elect to join together in fraternities and sororities of their choosing.  Challenges to speech codes benefit fraternities and sororities, at least those on public campuses, by continuing to focus the attention of courts on the constitutional protections due American college students.

On private campuses such rights are less secure but may be found in the contracts entered into between the school and its students – such as in the rights of students set out in college catalogs.  Alternatively, while untested in the courts, the 1998 amendments to the Higher Education Act sets out the “Sense of Congress” that institutions of higher education  receiving federal support under the Act may not discriminate against their students who engage in constitutionally protected speech or association.  (20 U.S. §1011).

On September 4, 2003, Shippenburg University was enjoined from enforcing parts of its speech code until the litigation is concluded.  Further information about the preliminary injunction will be reported in the November issue of Fraternal Law.  See Bair v. Shippenburg Univ., 2003 WL 22075681 (M.D.Pa.).