Public universities are bound by the Constitution’s First Amendment, which protects speech rights, even if someone is “offended.”
And private universities almost without exception, while they are not legally obligated to protect speech, promise students they will.
But, in reality, neither is succeeding, according to a report by the Foundation for Individual Rights in Education, FIRE.
In its “Spotlight on Speech Codes 2019” report, FIRE said that in 11 states, at least half of the colleges earned the organization’s worst rating for “clearly and substantially” abandoning free speech.
And almost 800,000 students at colleges considered among the top in the country are required to find a “free speech zone” before exercising their rights.
“The vast majority of students at America’s top colleges and universities surrender their free speech rights the moment they step onto campus,” the organization said.
The report found 89.7 percent of American colleges have policies that limit – or too easily could restrict – student and faculty expression.
“Most colleges impose burdensome conditions on expression by maintaining policies that restrict students’ free speech rights,” said FIRE Senior Program Officer Laura Beltz, lead author of the study. “Colleges should be a place for open debate and intellectual inquiry, but today, almost all colleges silence expression through policies that are often illiberal and, at public institutions, unconstitutional.”
FIRE gave a red light rating to 28.5 percent of the schools it assessed.
“Alarmingly, red light schools still make up at least half of FIRE-rated institutions in the District of Columbia and 11 states: Alaska, Delaware, Idaho, Illinois, Louisiana, Massachusetts, New Jersey, South Carolina, Vermont, Washington, and Wyoming,” the organization said.
Only 9 percent (42 schools) “do not maintain any policies that compromise student expression, earning FIRE’s highest, green light rating,” FIRE said.
The total is up from only 2 percent in 2009, when the evaluations were begun.
But the middle ground – institutions earning a yellow light rating – is swelling: from 21 percent in 2009 to 61 percent today.
“While less restrictive than red light policies, yellow light policies still prohibit or have an impermissible chilling effect on constitutionally protected speech,” FIRE said.
“Many states have made incredible strides toward eliminating speech codes – whether that’s through collaboration with FIRE, legislative action, or nudging from peer institutions,” explained Beltz. “In other states, too many students are left to fend for themselves to protect their rights against policies that – whether explicitly or covertly – erode student expression.”
The problems exist throughout the community of public and private schools.
“Private institutions are generally not bound by the First Amendment but are responsible for living up to their institutional commitments to free speech. More than 88 percent of private institutions fall short of those promises,” the report said.
The evaluation looked at 362 four-year public institutions and 104 of the nation’s most prestigious private schools.
The report defines free speech as speech not not regarded as a First Amendment exception, as defined by the Supreme Court.
Unprotected speech includes speech that incites to violence, “fighting words,” harassment, true threats and intimidation, obscenity and defamation.
“If the speech in question does not fall within one of these exceptions, it most likely is protected speech,” the report said.
The report noted the private Macalester College in St. Paul, Minnesota, orders students not to post anything online that officials think is “racially, sexually, ethnically or religiously objectionable.”
Boston University bans anything that’s “annoying.”
But court challenges are making college officials more aware of the unconstitutionality of the codes.
“Any speech code in force at a public university is vulnerable to a constitutional challenge. Moreover, as speech codes are consistently defeated in court, administrators cannot credibly argue that they are unaware of the law, which means that they may be held personally liable when they are responsible for their schools’ violations of constitutional rights,” the report said.