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CHAPTER 3

The College Road Trip

YOU ARE A SIXTEEN-YEAR-OLD JUNIOR IN HIGH SCHOOL. It’s fall, and you have decided to get an early jump on your college campus visits to see where you want to apply. Your parents are trying to steer you towards a public college, since the prices of the top private colleges are, as your father says, “highway robbery.” You think he must be wrong. Your parents need to understand that college is considered mandatory for most jobs these days, and a big-name school holds the key to a stellar career. Besides, everyone else seems to have figured out how to pay for college, right?

While your heart is still set on Harvard and Yale and you have secretly promised yourself you will apply to them, you clamber into your mother’s aging Ford Taurus and visit some state colleges. After a seeming eternity in the car, you are now on a guided tour of Big State University, a school so large that there are twice as many students enrolled as people in your home town. Maybe it’s the fall chill or just the newness of the whole thing, but you find yourself excited as the good-looking sophomore begins your tour of the campus. It is a vast complex, with a library the size of the hospital where you were born, a cafeteria that seems to go on for days, and lecture halls that could hold your entire high school.

At one point during the tour, you pass a twenty-foot-wide octagonal gazebo. Jason, an irreverent potential classmate, laughs. “Ah, the infamous ‘free speech gazebo.’”

“Like ‘Speakers Corner’ in London?” you ask, showing off your Quiz Bowl knowledge. Jason shrugs, not knowing what you are talking about. “A place where you can always speak your mind no matter what?” you add.

“You wish,” he says. “It’s the only place on campus designated for ‘free speech activities’ and you have to reserve it days in advance.”

You laugh, but then pause. He isn’t serious, is he?

Quarantining Free Speech

Trevor Smith was unaware of Texas Tech University’s free speech zone before he decided to enroll. But when he began to organize a protest against the war in Iraq in February 2003, he was told that he had to limit his group to the campus’s twenty-foot-wide “free speech gazebo.”¹ This was the sole area where Texas Tech’s 28,000 students could engage in any free speech activities, from handing out flyers, pamphlets, or newspapers, to holding demonstrations. Requests to engage in these time-honored forms of campus expression outside of the gazebo had to be “submitted at least six university working days before the intended use.”²

The gazebo was much too small to hold all the students who might wish to engage in an average protest. I asked a friend of mine with a math degree from MIT to do a dimensional analysis of the gazebo. What if all the students at Texas Tech wanted to exercise their free speech rights at the same time? My friend calculated that you would have to crush them down to the density of uranium 238 to jam all 28,000 students into the gazebo.

Trevor Smith wondered how he could have an effective protest in a tiny gazebo in a tiny corner of the huge campus. If no one can hear or see your protest, what’s the point? So Trevor appealed to FIRE for help. By that time, I had been at the organization for two years and was learning that every time I thought I’d seen it all, I would confront something like the free speech gazebo. I wrote to the university:

Texas Tech’s nearly 28,000 students deserve more than 20 feet of freedom (approximately 1 foot of freedom per 1,400 students). This caricature of constitutional law should be anathema to any institution committed to intellectual rigor, robust debate, and a free and vibrant community. We call on you to tear down the barriers to speech and declare all of Texas Tech University a “free speech area.”³

The tone may have been melodramatic, but I meant every word. With pressure from FIRE and unfavorable press coverage, the university decided to let Trevor’s protests proceed as planned and expanded the free speech zone. Merely expanding the zone, however, was not good enough, especially since Texas Tech also maintained a broad speech code. So in June 2003, the Alliance Defense Fund, a Christian litigation organization, launched a lawsuit against Texas Tech in coordination with FIRE. The resulting 2004 decision in Roberts v. Haragan overturned Texas Tech’s remarkably restrictive free speech zone policy, declaring that all open areas on campus are presumed to be available for free speech activities.⁴ The decision also overturned the campus speech codes that banned, among other things, “insults” and “ridicule.”⁵

One might think that restricting free speech to tiny areas of campus is an eccentricity unique to Texas Tech that ended after a defeat in court. Sadly, restrictive and out-of-the-way free speech zones have been around for a long time and show little sign of disappearing.

I have never been able to determine the precise genesis of campus “free speech zones.” Many such zones popped up during the campus free speech movement of the 1960s and ’70s, but it isn’t clear when they were transmogrified from an additional area on campus where one could always engage in free speech, to a method of restricting free speech to as small a space as possible. I suspect this change took place in the late 1980s and through the ’90s, during the accelerated bureaucratization of campuses that I address later in this chapter. In The Shadow University, Kors and Silverglate recount efforts to fight back against free speech quarantines, starting with a successful battle at Tufts University in 1989.⁶ Other attempts to impose tiny zones had been defeated at Oklahoma State University, the University of South Florida, and the University of Wisconsin–Whitewater.⁷ I had been at FIRE for only a few weeks before I started running into these zones.

The first case that I encountered was at West Virginia University, where Professor Daniel Shapiro and students Matthew Poe and Michael Bomford were leading the fight against the school’s two tiny zones, bringing together groups like the College Democrats, the College Republicans, and the West Virginia Animal Rights Coalition to protest the policy.⁸ Even added together, the two zones limited free speech to less than 1 percent of the total campus. It took nearly a year and a half, and a dozen detailed letters, to get the zones opened up and the policy liberalized. When a libertarian litigation group called the Rutherford Institute filed suit, it was the final straw—the university finally abandoned the zones. Over the course of the following years, fighting absurd free speech zones became a staple of my work. We challenged these zones at scores of schools, including the University of North Texas, the University of Central Florida, the University of Nevada at Reno, Clemson University, Citrus College in California, Florida State University, the University of North Carolina at Greensboro, California State University at Chico, Tarrant County College in Texas, and Appalachian State University.⁹

Many campuses that imposed free speech zones were not content with limiting free speech to a tiny fraction of campus, but also applied onerous rules within those zones. At Western Illinois University, for example, you had to apply forty-eight hours in advance to use a zone that was smaller than a classroom.¹⁰ It took student and faculty protests, along with bad publicity, to get the school to expand the zone in 2003. At Valdosta State University, the same school that kicked out Hayden Barnes for his Facebook collage, the free speech zone consisted of one small stone stage, which also required forty-eight hours’ notice to reserve. Furthermore, it was available for only two hours a day, from the “hours of NOON to 1 PM and/or 5 PM to 6 PM.” It was not until FIRE took out a full-page ad in U.S. News and World Report’s college ranking edition in 2008 that Valdosta backed down from this unconstitutional policy.¹¹

Speech zone policies have won our Speech Code of the Month title many times. Our July 2007 SCOTM (yes, the acronym sounds a little gross to us too) went to McNeese State University for limiting demonstrations to two small free speech zones and allowing them to demonstrate only “once during each Fall, Spring, and summer [sic] session in the assigned demonstration zone only.”¹² Applications to use the zones had to be received at least seventy-two hours in advance, and the zones could only be used from Monday through Friday. Our August 2010 SCOTM went to Front Range Community College for its free speech zone policy, which according to Samantha Harris, the attorney who evaluates these codes for constitutionality, “contain[ed] a perfect blend of unintentional hilarity and horrendous unconstitutionality.”¹³ It included a waiver that you had to sign binding yourself along with your “heirs, successors, [and] executors” to indemnify the college if you were harmed, even due to the negligence of the college, while exercising your free speech rights. It also forbade handing out any literature, pamphlets, or material within the zone unless a passerby actually went up and asked for it. In addition, it banned “[p]ictures, displays, graphics, etc…. if they promote hate, harm, violence, or the threat of these to others,” and even “[d]e minimus [sic] speech (speech that amounts to nothing and has no purpose).” The idea of campus administrators giving themselves the power to decide which speech has value and which doesn’t is almost as comical as it is unconstitutional. Our September 2010 “honor” went to UMass Amherst, which maintained a policy on “Controversial Rallies” stating that “[s]pace for controversial rallies must be requested 5 working days prior to the scheduled date” and that “[s]pace may only be reserved from 12 noon to 1 PM.”¹⁴ The policy also required the student organization sponsoring the controversial rally to “designate at least 6 members to act as a security team” (thereby putting these students at risk of physical harm). And our March 2012 SCOTM went to the University of Missouri–St. Louis, where “students wishing to hold a rally or demonstration on campus must provide the university with six weeks’ notice and may not do anything to ‘discredit the student body or UM–St. Louis.’”¹⁵

Our December 2007 SCOTM—the University of Cincinnati’s “free speech area,” which amounts to just 0.1 percent of the school’s 137-acre campus—was challenged in a February 2012 lawsuit.¹⁶ In addition to quarantining “demonstrations, pickets, and rallies” to the zone, the policy requires that all expressive activity in the zone be registered with the university a full ten working days in advance and threatens students that “[a]nyone violating this policy may be charged with trespassing.” And the university has been true to its word. When the campus chapter of Young Americans for Liberty asked for permission to gather signatures and talk to students across campus in support of a time-sensitive ballot initiative, they were told in an email that they were not even “permitted to walk around,” and that “if we are informed that you are, Public Safety will be contacted.” The student group filed suit, challenging the policy’s constitutionality on First Amendment grounds.¹⁷

So, why free speech zones? How can they be defended when they dramatically restrict speech at institutions that should be the preeminent free speech zones of our whole society? One reason is that the courts, unfortunately, have been too permissive with unreasonable “reasonable time, place, and manner restrictions.” Courts have permitted, for example, creating crude and tiny free speech zones (sometimes rightfully called “free speech cages”) to prevent protestors from getting too close to the Republican or Democratic national conventions. As a principle, allowing for the reasonable regulation of the “time, place, and manner” of speech makes sense; putting a reasonable cap on the volume of any concert in a densely populated neighborhood, for instance, is understandable. But on campus, the excuse that university administrators are only regulating the “time, place, and manner” of speech has been twisted out of recognition.

“Time, place, and manner” has become the censor’s mantra—literally, in the depressing case of Northern Arizona University. On September 11, 2011, two students who wanted to hand out small American flags in the student center to commemorate the tenth anniversary of 9/11 were not only ordered to stop but also charged with a disciplinary offense.¹⁸ NAU’s response to the flags involved no fewer than four administrators and a police officer. Three of these administrators cited “time, place, and manner” restrictions as the justification for demanding that the students stop their action, and one chanted the phrase over and over again when the students claimed that their minimal form of expression should be allowed. (The campus police officer, for her part, looked like she’d rather be doing just about anything besides stopping students from passing out American flags.) Watching the strange ordeal on video, I was struck by how important it was to these administrators to shut these students down, and how they believed the incantation of “time, place, and manner” conferred upon them the unquestionable power to silence the students.

What these administrators probably did not know is that the Supreme Court had anticipated that “time, place, and manner” restrictions could be abused to stop speech disfavored by those in power, and therefore the Court imposed a number of requirements for their use.¹⁹ To be constitutional, the regulations must be “content-neutral”; they cannot be directed at the content or viewpoint of the speech. In addition, they must be “reasonable”—related to an important university interest (like preventing the disruption of classes). They also must leave ample alternative options for free speech. The zones discussed in this chapter come nowhere near the legal definition of constitutionality, nor do they stand up to public scrutiny. FIRE has had great success defeating free speech zones by pointing out to the public that “there is nothing reasonable about transforming 99% of a public campus into a censorship zone.”

But while campaigns against speech zones are usually successful, the zones persist for a simple reason: while everyone claims to love free speech, we are quick to leap on any exception pliable enough to target opinions we dislike. Those of us who defend freedom of speech watch this happen with incredible speed and predictability. The reason we have such strong protections for freedom of speech as part of our constitution is because the urge to censor opinions we don’t like is so powerful. In fact, Steven Pinker—a Harvard psychology professor, bestselling author, and FIRE Board of Advisors member—believes that we may be hardwired to suppress ideas that make us uncomfortable. Pinker has linked this instinct to a deep “psychology of taboo,” which he speculates may incline us to surround ourselves with people who feel that even thinking certain “bad” thoughts is evil.²⁰

Free speech champion Nat Hentoff nicely summed up the universality of this censorship urge in his book Free Speech for Me—But Not for Thee: How the American Left and Right Relentlessly Censor Each Other. Hentoff argued that “censorship—throughout this sweet land of liberty—remains the strongest drive in human nature, with sex a weak second. In that respect, men and women, white and of color, liberals and Jesse Helms, are brothers and sisters under the skin.”²¹

Four Factors That Work against Campus Free Speech

Over the years, I have observed four primary factors that explain the creation of speech zones, the tenacity of speech codes, and the pervasiveness of campus censorship: ideology, bureaucracy, liability, and ignorance.

IGNORANCE: After years of speaking at conferences of university administrators and in front of students, I realized something that First Amendment attorneys can easily forget: the value of free speech is not obvious or intuitive. What is obvious to people is that some ideas are hurtful and we should try to get along with each other. It is far harder to understand that we should commit ourselves to discussion that is often painful, for the good of all. You have to be taught the profound rationales that undergird free speech, and you have to learn the value of debate by experiencing it.

Students cannot be expected to understand the liberating power of new and challenging ideas when the administrators who run campuses have not themselves learned an appreciation for the practice of free speech. Those in charge are also slow to acknowledge that their good intentions may get confused with self-interest, and that they may be censoring people simply for having critical or contrasting opinions. Administrators must be willing to “tie their own hands” and guard themselves from the temptation to punish opinions they dislike.

IDEOLOGY: “Political correctness” has become the butt of many jokes, yet a PC morality still thrives on campus. It emphasizes the prevention of “hurtful speech” at all costs, with special protection for “historically underrepresented groups,” including gay students, racial minorities, and women. But the justification for campus speech codes and the reality of campus censorship are entirely different things.

Defenders of speech codes will invoke nightmare scenarios of students being chased off campus by mobs of bigots shouting racial epithets. These hypothetical examples usually involve speech that is not constitutionally protected, such as true threats, stalking, or vandalism. In reality, the way speech codes are implemented often bears no resemblance to such horror stories; many cases involve nothing more serious than mockery of the university or the administration. Conjuring up scary scenarios to justify speech codes allows administrators to manipulate the emotions of goodhearted students, professors, and other administrators to support speech limitations that often have nothing to do with “hate speech.”

While I was speaking at a conference of administrators several years ago, one of them angrily asked me, “So there is nothing that can be done to prevent a student from calling another the n-word?” This administrator actually saw anything short of punishment as doing nothing. My response was that political correctness as a cultural phenomenon has been incredibly successful; even back when I graduated from Stanford in 2000, anyone who used a racial epithet would have been rightly vilified as a bigot (and, notably, I can’t think of a single incident where anyone did). And that is how change should come about in a free society—through cultural shifts, not coercion or enforced silence.

As for the idea of “underrepresented groups” that need special protection from offense, it is based on an outdated concept of a dominant campus majority. It has been a long time since white Protestant males have dominated college campuses. Women now constitute the majority at most colleges. Since 2000, women have represented around 57 percent of college enrollments, and in some colleges they make up as much as two-thirds of students.²² In my own city, Hunter College and Lehman College, both CUNY schools, hover at around 70 percent women.²³ Much of the rhetoric around free speech issues seems oblivious to this seismic campus shift.

Nevertheless, PC ideology with its focus on “underrepresented groups” still endures, in part because it invokes values like politeness, fairness, tolerance, and respect. Simply put, political correctness seems “nice.” In practice, though, it often promotes intolerance, often for those who are culturally right of center, or for anything that mocks or satirizes a university itself. Most troublingly, it provides a convenient excuse for those in authority to marginalize criticism and nonconformity.

One predictable result of working so hard to prevent offense is that students quickly learn that claiming to be offended is the ultimate trump card in any argument. After all, if you knew you could immediately win an argument by calling the other person’s position offensive, wouldn’t you be tempted to use that tactic? Jonathan Rauch refers to this as an “offendedness sweepstakes.” Being offended is an emotional state, not a substantive argument; we cannot afford to give it the power to stifle debate.

LIABILITY: This is the least known and least understood factor in the expansion of campus speech policies into the lives of students. Universities are afraid of being sued even for frivolous claims of harassment and discrimination by students or employees. Currently, the logic seems to be that a free speech lawsuit is comparatively rare and will not cost much in court, while lawsuits for harassment and discrimination are far more common and costly. Therefore, university attorneys conclude that it is best to have broad speech-restrictive policies that you can point to during litigation to show you were proactive against “offensive speech,” and that protecting speech must be secondary.

Andrew Hacker and Claudia Dreifus examined universities’ fear of liability and the link between legal fees and out-of-control tuition in their book Higher Education? (2010). They concluded that “[a] big slice of the tuition pie ends up with lawyers and their clients. After hospitals, colleges may be our society’s most sued institutions.”²⁴ While some legal threats to universities are valid (say, a lawsuit for the denial of free speech), many others contribute to an overly cautious, overly regulated atmosphere that’s hostile to free speech.

BUREAUCRACY: The dramatic expansion of the administrative class on campus may be the most important factor in the growth of campus intrusions into free speech and thought. While FIRE has long been concerned about the harmful results of swelling campus bureaucracy, Professor Benjamin Ginsberg of Johns Hopkins University made the case in detail in his stinging 2011 book, The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters.²⁵ Ginsberg exposed the dizzying growth of the administrative class at universities, the usurpation of powers that once belonged strictly to the faculty, the surprising lack of qualifications of many administrators, the unseemly rise in the salaries of administrators (especially university presidents), and how a burgeoning bureaucracy jacks up costs while diluting educational quality. This ever-expanding bureaucracy creates and enforces an environment of censorship on campus.

The Price of Bureaucracy and Hyperregulation

From the 1981–1982 school year to the 2011–2012 school year, the cost of tuition and fees at private, nonprofit four-year colleges almost tripled, even adjusting for inflation, according to the College Board, a nonprofit collegiate testing organization. During the same period, the cost of attending a four-year public college almost quadrupled.²⁶ Meanwhile, between 1980 and 2010, the “average family income declined by 7% ($1,160 in constant 2010 dollars) for the poorest 20% of families,” while it rose by only “14% ($7,249) for the middle 20% of families.” The increase in college costs even outstripped the 78 percent ($136,923) growth for the wealthiest 5 percent.²⁷ In other words, the cost of higher education at both public and private colleges has skyrocketed relative to all income levels.

Bringing this gap into stark relief, for the 2011–2012 school year, tuition at the one hundred most expensive schools in the country ranged from $59,170 (#1, Sarah Lawrence) to $51,182 (#100, University of Miami) per year.²⁸ These top hundred colleges include New York University, Johns Hopkins, Georgetown, Boston College, Duke, the University of Chicago, Tufts, MIT, Brown University, Notre Dame, Pepperdine, Yale, and my alma maters American and Stanford.²⁹ Meanwhile, median family income in the U.S. hovers around $50,000 a year.³⁰

As the cost of college has distanced itself from what all but the richest Americans actually make, students and parents have relied more and more on debt. In 2010, student loans overtook credit cards as the largest category of American personal debt. It will soon total over a trillion dollars, and it has increased by 25 percent just since the start of the Great Recession.³¹ Average student loan debt is around $25,000, and it is not uncommon for college graduates to owe more than $100,000.³² Unsurprisingly, default rates are rising.³³

The result is what Peter Thiel, founder of PayPal, has called the “higher education bubble.” Thiel sees the rising costs in higher education as similar to the tech and housing bubbles of the last two decades: in each case, an asset suddenly skyrockets in value, far outstripping any normal expansion of price. Today, education is “basically extremely overpriced,” writes Thiel:

People are not getting their money’s worth, objectively, when you do the math…. It is, to my mind, in some ways worse than the housing bubble. There are a few things that make it worse. One is that when people make a mistake in taking on an education loan, they’re legally much more difficult to get out of than housing loans.³⁴

Critics, especially those who work for or run colleges, have scoffed at Thiel’s notion of a higher ed bubble. But Standard & Poor’s issued a report in February 2012 agreeing that “[s]tudent-loan debt has ballooned and may turn into a bubble” and that defaults and downgrades of student-loan-backed securities are on the rise.³⁵

The rise in cost is related to the decline in rights on campuses in important ways. Most importantly, the increase in tuition and overall cost is disproportionately funding an increase in both the cost and the size of campus bureaucracy, and this expanding bureaucracy has primary responsibility for writing and enforcing speech codes, creating speech zones, and policing students’ lives in ways that students from the 1960s would never have accepted.

The most conspicuous component of rising costs in higher education has been the soaring salaries of top administrators. According to Andrew Hacker and Claudia Dreifus, “[b]etween 1992 and 2008—that’s only sixteen years—the salaries of most of the college presidents we looked at more than doubled in constant-value dollars. Some rose closer to threefold. (For a comparison, overall American earnings rose by 6 percent during this period.)”³⁶ Their book provides specific examples of staggering pay hikes:

The pay of Stanford’s president increased from $256,111 to $731,614 in constant dollars, while that of NYU’s president burgeoned from $443,000 to $1,366,878. The trend was similar at smaller schools. At Wellesley, Carleton, and Grinnell, presidential compensation rose from the low $200,000s to over $500,000.

In 2008, the most recent reports available show a dozen presidents receiving more than $1 million. Among them were the heads of Northwestern, Emory, Johns Hopkins, and the University of Pennsylvania.³⁷

Keep in mind that all of these university presidents are the heads of nonprofits.

These inflated salaries help create a disconnect between the administrations of universities and both their students and the public. Take Johns Hopkins University in Baltimore, for example, where President William Brody served for thirteen years pulling in a salary of close to a million dollars. In 2007, a fraternity member posted a Facebook invite to a “Halloween in the Hood” party that relied on urban slang as well as Dave Chappelle- and Chris Rock-esque humor. (The fraternity had already hosted a self-consciously politically incorrect party called the “White Trash Bash” and suffered no consequence for it.)³⁸ Justin Park, the student who sent the invitation, was an eighteen-year-old, first-generation Korean American student who was admitted to Hopkins at the age of fifteen. He believed he was making a hip joke, and he profusely apologized after students complained about the invitation’s racial insensitivity. The issue should have ended there, but President Brody’s administration went after Park aggressively. He was found guilty of “harassment,” “intimidation,” and “failing to respect the rights of others.”³⁹ Although Park’s sentence was later reduced in the face of public pressure (he also agreed not to talk further about his case in order to get leniency), his original punishment included a lengthy suspension from the university, completion of three hundred hours of community service, an assignment to read twelve books and write a reflection paper on each, and mandatory attendance at a workshop on diversity and race relations.⁴⁰ Brody made matters worse shortly after Park’s suspension by introducing a new and almost laughably broad “civility” code prohibiting “rude, disrespectful behavior” at the university. He also stated in an article in the December 11, 2006, issue of the JHU Gazette that Johns Hopkins would not allow speech that is “tasteless” or that breaches standards of “civility.”⁴¹

FIRE usually succeeds in getting universities to back down from their decisions to punish students for freedom of speech, but not at Johns Hopkins. I believe this is, at least in part, because President Brody was paid such a high salary that he had little incentive to care about public opinion. When Brody retired in 2009, while the country was still deep in recession, he received a $3.8 million compensation package.⁴²

The problem is not just the rise in cost per administrator, but also the startling growth in size of the administrative class. In 2005, with little public fanfare, an important milestone in the transformation of higher education was reached: for the first time, the number of full-time faculty was outstripped by the number of administrators on campus.⁴³ This trend has only accelerated since then. In 2010, the National Center for Education Statistics (NCES), a branch of the U.S. Department of Education, reported that, as of 2009, only 46 percent of the approximately 1.6 million professionals employed full-time by our nation’s colleges were faculty.⁴⁴ As Benjamin Ginsberg explains: