Speech codes (cont'd)

Harold F. Schiffman haroldfs at ccat.sas.upenn.edu
Thu Dec 7 14:08:59 UTC 2006


Thursday, December 7, 2006

Campus Speech Codes Often Violate Constitutional Rights, Watchdog Group


Most college and university speech codes would not survive a legal
challenge, according to a report released on Wednesday by the Foundation
for Individual Rights in Education, a watchdog group for free speech on
campuses. The group examined publicly available policies at more than 300
institutions -- those highly ranked in U.S. News & World Report, as well
as other big public universities -- and concluded that 93 percent of them
prohibit speech that is protected by the First Amendment. "Codes that
would be laughably unconstitutional in the public sphere dominate at
colleges," said Greg Lukianoff, president of the watchdog group.

Colleges adopt restrictive speech codes not only out of political
correctness, Mr. Lukianoff said, but also because they fear harassment
lawsuits. The report labeled many speech codes as overly broad or vague,
and cited examples such as Furman University's prohibition of "offensive
communication not in keeping with the community standards," and a ban on
"disrespect for persons" at the University of North Carolina at
Greensboro. Using a traffic-light metaphor, the group gave colleges a "red
light" if it found clear restrictions of free speech and a "yellow light"
if their policies could be interpreted as limiting protected speech. Only
eight institutions received a "green light," meaning the group found them
to have no objectionable policies.

Meanwhile, the report warned more than 200 colleges getting the red-light
designation that they were "extremely vulnerable to a constitutional
challenge." Citrus College, Shippensburg University of Pennsylvania, the
State University of New York at Brockport, and Texas Tech University have
recently revised their speech codes after the group filed lawsuits against
them. Many colleges' codes are vulnerable to legal challenges because they
regulate the content of speech, which is protected by the First Amendment,
rather than the effect of speech, which could be threatening or
disruptive, said Derek P. Langhauser, general counsel for the Maine
Community College System. Because of that distinction, colleges'
disciplinary action against students whose speech has a negative effect is
often legally defensible, even if a code itself is not.

A speech code may exist primarily to promote institutional values, Mr.
Langhauser said. "If nobody is really enforcing it, you're not saving
anybody from anybody," he said, referring to the watchdog group's
scrutiny. "The better question is how many students are really being
prosecuted and losing the opportunity to get an education because of the
existence of these codes," Mr. Langhauser said. According to Mr.
Lukianoff, speech codes, regardless of their enforcement, promote
self-censorship. "The code is the harm itself," he said.

The report, "Spotlight on Speech Codes 2006: The State of Free Speech on
Our Nation's Campuses" is available on the group's Web site.

Copyright  2006 by The Chronicle of Higher Education

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