More than six of 10 colleges and universities across the United States have yet to figure out the First Amendment, because their “speech codes” conflict with the Constitution, according to a new report from the Foundation for Individual Rights in Education.

“FIRE surveyed 409 schools for this report and found that over 62 percent maintain severely restrictive, ‘red-light’ speech codes – policies that clearly and substantially prohibit protected speech,” said the executive summary.

“That this figure is so large is deeply troubling, but there is good news: for the fifth year in a row, the percentage of schools maintaining such policies has declined.”

The report said “progress continues to be threatened by new federal and state regulations on harassment and bullying.”

“A number of universities have adopted more restrictive harassment policies threatening protected speech in response to the April 4, 2011, ‘Dear Colleague’ letter issued by the federal Department of Education’s Office for Civil Rights, the agency responsible for enforcement of federal anti-discrimination laws on campus.”

FIRE said the Education Department’s letter “backed away from OCR’s previously robust support for students’ expressive rights, and a number of universities have followed suit.”

The report said of the 409 schools reviewed, 254 were given a red light for their restrictions, 131 got a yellow light rating and 15 got a green-light rating.

“For the fifth year in a row, this represents a decline in the percentage of schools maintaining red-light speech codes, down from 75 percent five years ago. Additionally, the number of green-light institutions has risen from just eight schools five years ago (2 percent) to 15 schools this year (3.6 percent).”

The report continued, “The percentage of public schools with a red-light rating also fell for a fifth consecutive year. Five years ago, 79 percent of public schools received a red-light rating. This year, 61.6 percent of public schools did – a dramatic change.”

Other major findings include that the number of schools that do not maintain “speech codes” has nearly doubled in five years from eight to 15. Virginia was the best state, with 37.5 percent of schools earning a green light and only 25 percent given a red light.

“In Mississippi, both the University of Mississippi and Mississippi State University eliminated all of their speech codes this past year, earning green-light ratings from FIRE.”

But there remain problem areas: Harvard “prohibits actions that ‘demean’ others based on a variety of personal characteristics, as well as ‘behavior evidently intended to dishonor such characteristics as race, gender, ethnic group, religious belief, or sexual orientation.'”

And Princeton “prohibits verbal behavior ‘which demeans … or injures another because of personal characteristics or beliefs or their expression,'” FIRE reported.

Likewise, Columbia, “prohibits ‘belittling remarks about a person’s gender or belittling remarks about a person’s sexual orientation based in gender-stereotyping,’ and ‘inappropriate sexual innuendos or humor,’ including over ’email, the Internet, or other forms of digital media.'”

“FIRE is happy that speech codes have again declined, but it is hard to feel too good when so many students are still living with censorship,” said Samantha Harris, the group’s director of speech code research.

“We will continue our work until campus censorship is a thing of the past.”

FIRE is a nonprofit educational foundation that unites civil rights and civil liberties leaders, scholars, journalists and public intellectuals from across the political and ideological spectrum on behalf of individual rights, freedom of expression, academic freedom, due process and rights of conscience at the nation’s colleges and universities.

The report said the 3rd U.S. Circuit Court of Appeals, for Delaware, New Jersey and Pennsylvania, “has the strongest record in the nation of striking down university and even secondary-school speech codes on constitutional grounds.

FIRE said speech codes – restrictions on speech that is constitutionally protected off campus – became popular during the 1980s and 1990s, and apparently were based on worry that people would be “offended.”

The report noted that the private universities, which have greater latitude in restricting speech of their students, often mislabel their own activities.

“Georgetown University’s ‘Speech and Expression Policy,’ for example, asserts: ‘All members of the Georgetown University academic community … enjoy the right to freedom of speech and expression. This freedom includes the right to express points of view on the widest range of public and private concerns and to engage in the robust expression of ideas.'”

However, that’s “false advertising,” FIRE said, because the school prohibits “a great deal of speech that the First Amendment would protect at a public university.”

“Students may freely choose to enroll at a private institution where they knowingly give up some of their free speech rights in exchange for membership in the university community. But universities may not engage in a bait-and-switch where they advertise themselves as bastions of freedom and instead deliver censorship and repression,” the FIRE report said.

Among instances of concern was a Colorado College situation in which two students were determined guilty of violating the policy on “violence” for a satirical flyer that mocked a publication of the college’s “Feminist and Gender Studies Program.”

Other First Amendment issues have developed with “anti-bullying policies,” tolerance rules, Internet use policies, demonstration limits, security fee policies and free speech zones, where speech is allowed only in a restricted – usually out of the way – place.

The good news, the report said, is that unconstitutional policies can be changed by student activism or legal challenges.

The green light schools were identified as Arizona State, Black Hills State, Carnegie Mellon, Cleveland State, Dartmouth, James Madison, Mississippi State, Shippensburg University of Pennsylvania, College of William and Mary, Mississippi, Nebraska-Lincoln, Pennsylvania, Tennessee-Knoxville, Utah and Virginia.

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