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CHAPTER 2

Opening the College Brochure

YOU ARE A SOPHOMORE IN HIGH SCHOOL, and your attention has long since shifted away from the incident with the student newspaper. Turns out, you did quite well on your PSAT exam and you’ve been coming home from school every day to a mailbox full of glossy promotional materials from colleges around the country. The brochures show happy students making friends, playing Frisbee on the quad, or studying in a grand library. At night, when your other friends are watching episodes of Tosh.O on Hulu, you have been scanning info about your dream schools. You doubt that you have the scores to get into Yale, but you pore over its website, watching its promotional video over and over. It is a musical produced by students, very much like the TV show Glee. While combing through another section of the website, you stumble upon Yale’s policy on “Free Expression, Peaceful Dissent, and Demonstrations.” It bravely declares the essentiality of free speech:

The history of intellectual growth and discovery clearly demonstrates the need for unfettered freedom, the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable…. We value freedom of expression precisely because it provides a forum for the new, the provocative, the disturbing, and the unorthodox. Free speech is a barrier to the tyranny of authoritarian or even majority opinion as to the rightness or wrongness of particular doctrines or thoughts.¹

Your heart jumps a little. Think the unthinkable, challenge the unchallengeable! Actual debate and discourse, actual self-expression! You think to yourself, college will be so different from high school. At college, you will finally be free to debate, argue, and discuss anything without fear of punishment.

Then you Google a little more and come across a term you hadn’t seen before: “campus speech codes.” That doesn’t sound right. At college? You look a little further and realize it is no cause for concern. “Speech codes,” whatever they were, were apparently abandoned, like, a gabillion years ago.

PC Went to War with Free Speech in the 1990s, and Free Speech Lost

The most pervasive myth about campus censorship and speech codes is that this war was fought long ago and free speech won. In the late 1980s and early ’90s, America was distracted, disturbed, and sometimes delighted by a new craze: political correctness. Comedians and authors joked about the sudden commitment to a novel PC vocabulary designed to be less offensive: the gender-neutral “flight attendant” replaced “stewardess,” the non-skin-tone-related “African American” became the stand-in for “black,” and the non-heterosexist term “partner” attempted to replace “boyfriend” and “girlfriend.” These terminology shifts were benign, but it wasn’t long before America realized that political correctness had a more sinister side.

Colleges and universities across the country were at the vanguard of the PC movement. Many schools began proudly and publicly passing “speech codes” as a way of demonstrating their commitment to diversity and tolerance. This was in stark contrast to the reputation that higher education had enjoyed since the explosion of the campus free speech movement in the 1960s. The most common legal theory behind speech codes was one that characterized some kinds of protected speech as punishable harassment. Speech regulations came in a variety of forms, but their purpose was the same: to prohibit speech that might be offensive on the basis of race, gender, sexual orientation, or an ever-increasing list of other characteristics. The University of Texas at El Paso, for example, has expanded the list of protected classes to absurd lengths by including “race, color, religion, national origin, gender, age, disability, citizenship, veteran status, sexual orientation, ideology, political views, or political affiliation.” (Emphasis mine, to show the conscious targeting of core topics of debate.)²

While bizarre cases of “PC run amok” were frequently reported in the early ’90s, it was not until 1993 that these abuses got their mascot. That year, the University of Pennsylvania threw its resources at punishing a student for shouting, “Shut up, you water buffalo!” out of his window.

Unfortunately, the student had directed his comments at members of a black sorority who were “serenading” his dormitory late at night. For sororities or fraternities, “serenading” means loud singing, stomping, and general clamoring in celebration of some group milestone. The sorority in this case had kept it up for more than twenty minutes while the student was trying to study, and while many others had yelled at them to keep it down. Even though no one could figure out how “water buffalo” was a racial epithet, the student was charged with racial harassment and threatened with expulsion. An Israeli scholar who heard about the case explained that “Behema is Hebrew slang for a thoughtless or rowdy person, and, literally, can best be translated as ‘water buffalo.’ It has absolutely no racial connotation.” As it turned out, the student had in fact attended a yeshiva, where, he said, “we called each other behema all the time, and the teachers and rabbi would call us that if we misbehaved.”³

Penn’s efforts to punish the student over his English version of a Hebrew colloquialism brought international media attention, including coverage by Time, Newsweek, the Village Voice, Rolling Stone, the New York Times, the Financial Times, the International Herald Tribune, the New Republic, The Times of London, NPR, and NBC Nightly News.⁴ Even Doonesbury and Rush Limbaugh came to a rare meeting of minds, agreeing that Penn’s handling of the incident warranted mockery.⁵ In the face of criticism from around the world and across the political spectrum, the school ultimately backed down.⁶

The defense of the student was successfully led by Alan Charles Kors, a Penn professor. Kors teamed up with Harvey Silverglate to author The Shadow University: The Betrayal of Liberty on America’s Campuses, which shed more light on “the Water Buffalo Case” and described dozens of additional examples of violations of free speech, due process, and other rights on campus. After publishing The Shadow University in 1998, Kors and Silverglate received so many additional reports of students being punished for exercising free speech on campus that they founded the Foundation for Individual Rights in Education in 1999. I joined FIRE as its first director of legal and public advocacy in 2001.

To most of the public and the media, however, campus political correctness appeared to be in retreat after the “water buffalo incident.” Beginning in 1989, every court-challenged campus speech code was struck down as unconstitutional.⁷ In 1991, President George H. W. Bush warned that “free speech [is] under assault” on college campuses. Congress, the California legislature, and the U.S. Supreme Court all struck blows of their own against curbing free expression on campus.⁸ This decisive turn against campus speech codes and political correctness led many people, including Robert O’Neil, a leading expert on campus free speech issues, to conclude that “most of the codes were either given a decent burial by formal action or were allowed to expire quietly and unnoticed.”⁹

Unfortunately, O’Neil and others who celebrated the end of PC censorship were dead wrong. Speech codes did not retreat; in fact, they quietly increased in number to become the rule rather than exception at colleges around the country. As for cases of PC censorship run amok, they only got worse and more common.

Hidden Speech Codes, Everywhere

Despite the glowing promises of free speech touted by most of the nation’s universities, if you dig deeper into university websites and student handbooks, you are likely to find policies seriously restricting speech. That is, if you know where to look.

FIRE defines speech codes as any campus regulation that punishes, forbids, heavily regulates, or restricts a substantial amount of protected speech, or what would be protected speech in society at large. Such a straightforward definition is necessary as, understandably, campuses do not place these restrictions under the heading SPEECH CODES in their student handbooks. In the most extensive study yet conducted of campus speech codes, FIRE’s constitutional lawyers announced in a 2012 report that 65 percent of the 392 top colleges surveyed have policies of this kind that severely restrict speech protected by the First Amendment.¹⁰

Some of these speech codes promise a pain-free world, like Rhode Island College’s policy stating that the college “will not tolerate actions or attitudes that threaten the welfare of any of its members” (emphasis added).¹¹ Banning actions that “threaten the welfare of others” is vague enough to be used against almost any speech, while banning “attitudes” is far beyond the legitimate powers of a state college. Meanwhile, Texas Southern University bans any attempts to cause “emotional,” “mental,” or “verbal harm,” which includes “embarrassing, degrading or damaging information, assumptions, implications, [and] remarks” (emphasis added).¹² How exactly one enforces a rule about “embarrassing assumptions,” I have no idea. Likewise, the University of Northern Colorado bans telling “inappropriate jokes” or “intentionally, recklessly or negligently causing physical, emotional, or mental harm to any person” (emphasis added).¹³ The code at Texas A&M prohibits violating others’ “rights” to “respect for personal feelings” and, in an oddly Victorian phrase, “freedom from indignity of any type.”¹⁴

Many universities also have wildly overbroad computer use policies, like those at the College at Brockport (State University of New York), which bans “[a]ll uses of Internet/email that harass, annoy or otherwise inconvenience others,” including “offensive language or graphics (whether or not the receiver objects, since others may come in contact with it).”¹⁵ Similarly, the Lone Star College System in Texas maintains a policy that prohibits any use of “vulgar expression,” including in electronic communications.¹⁶ Fordham University forbids using any email message to “insult” or “embarrass” someone—a rule that most students likely violate nearly daily—while Northeastern University tells students they may not send any message that “in the sole judgment of the University” is “annoying” or “offensive.”¹⁷

Vague and broad prohibitions against racial or sexual harassment remain the most common features of campus speech codes. Murray State University, for example, bans “displaying sexual and/or derogatory comments about men/women on coffee mugs, hats, clothing, etc.”¹⁸ (I am dying to see the coffee mug that inspired that rule.) The University of Idaho bans “communication” that is “insensitive.”¹⁹ New York University prohibits “insulting, teasing, mocking, degrading, or ridiculing another person or group,” as well as “inappropriate … comments, questions, [and] jokes.”²⁰ Davidson College’s sexual harassment policy prohibits the use of “patronizing remarks,” including referring to an adult as “girl,” “boy,” “hunk,” “doll,” “honey,” or “sweetie” (so I guess performing Guys and Dolls is out). It also bars “comments or inquiries about dating.”²¹ How exactly one dates without commenting or inquiring about dating is a question I have been asking the Davidson administration for years, but this policy remains unchanged. Perhaps Davidson prefers an antisocial student body.

San Francisco State University states that “[s]exual [h]arassment is one person’s distortion of a university relationship by unwelcome conduct which emphasizes another person’s sexuality.”²² This rule gives students no idea what could get them charged with harassment. Asking someone out for a date? Turning someone down? For obtuseness and childlike drafting, however, the University of Iowa takes the cake: sexual harassment “occurs when somebody says or does something sexually related that you don’t want them to say or do, regardless of who it is.”²³ The University of Tulsa’s harassment policy prohibits any “statement which, when viewed from the perspective of a reasonable person similarly situated, is offensive.”²⁴ Again, the law is clear that offensive speech is precisely the kind of speech in need of protection. We don’t really need a constitutional amendment to protect speech that is pleasant, popular, and agreeable to all.

Going above and beyond, Western Michigan University’s harassment policy actually banned “sexism,” which it defined as “the perception and treatment of any person, not as an individual, but as a member of a category based on sex.”²⁵ I am unfamiliar with any other attempt by a public institution to ban any perception, let alone perceiving that a person is a man or a woman. The plain language of this policy would outlaw anything but unisex bathrooms. While colleges should protect students from actual harassment, absurdly broadening the meaning of harassment trivializes real harassment by recasting the concept as a catchall for any expression that offends someone.

FIRE has been naming a Speech Code of the Month every month for over seven years, and there is no risk that we will run out of outrageous codes. Here is a list of some of the colleges that were awarded the dubious distinction of “Speech Code of the Month” by FIRE.²⁶ Note the hasty throwing together of crimes, like assault, or unprotected speech, like threats, with clearly protected speech, like jokes:

Several of the codes we have “honored” as Speech Codes of the Month were changed or reformed not long after being announced, likely due to public embarrassment. But speech codes are often like a multiheaded hydra: cut off one and a new one grows in its place. If there is a will to censor on campus, administrators will find a way.

I occasionally meet people who recognize that such overbroad policies ban a tremendous amount of protected expression, but think this is okay because they trust college administrators to administer these codes fairly. This idea is both naïve and even disingenuous; often, the very same people would be horrified if vague, amorphous laws controlling speech were placed in the hands of, say, Presidents George W. Bush or Barack Obama. And the worst of campus administrators don’t even limit themselves to the extraordinarily broad definitions of their codes.

Of course, if campus administrators honestly and consistently applied campus speech codes, they wouldn’t last a day, because they sweep in so much protected speech that the overwhelming majority of students could be found guilty. Professors and students wouldn’t put up with it and speech codes would end forever. Speech codes can survive only through selective enforcement. What administrators and advocates of restricting free speech want you to forget is that any such restrictive policy sets flawed human beings in charge of deciding what can and cannot be said. As any First Amendment lawyer knows, the first thing to go is any speech that criticizes or annoys those who decide what speech is free. It should therefore come as no surprise that the most frequently censored opinions on campus are those that are unpopular with campus administrators.

What Harassment Is Supposed to Mean

Before I discuss how administrators abuse harassment rationales, it’s important to understand what harassment means in the law. Sexual and racial harassment are fairly well-defined legal concepts. Certain examples are easy to identify: quid pro quo harassment—that is, if an employer demands sex for a promotion—is universally agreed to be harassment. The vagueness comes in with the concept of “hostile work environment” harassment, especially in the peculiar environment of the university, where you must allow a robust exchange of ideas on concepts including sexuality among young men and women who often can’t stop thinking about sex.

While fitting the definition of harassment to the college environment might sound like a puzzle, the good news is that the Supreme Court has already provided a definition that balances the protection of students from harassment with the importance of freedom of speech. In Davis v. Monroe County Board of Education, the Court gave its only ruling on the application of harassment to the educational environment.²⁷ In that case, the Court dealt with harassment allegations in the K–12 context, but its formula for deciding when to hold an educational institution liable for discrimination is also the correct standard for defining harassment on college campuses. “The Davis standard,” as I call it, defines harassment as unwelcome discriminatory behavior, directed at a person because of his or her race or gender, that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”²⁸ The Davis standard expertly balances legitimate concerns about actual discrimination and harassment with protection of free speech, while not overburdening universities with unrealistic obligations to police every aspect of their students’ lives.

The Davis standard is a serious answer to a serious problem. Those of us who believe in stopping genuine discriminatory harassment are done no favors by a reinterpretation of harassment that wrongly creates a generalized “right not to be offended.” This erosion of the seriousness of sexual harassment became apparent to me during the controversy surrounding Herman Cain, a Republican presidential candidate, in 2011.²⁹ The media seemed astonished that the initial claims of harassment against Cain were greeted by the public with some ambivalence and skepticism. That ambivalence started to subside as more accusers came forward and the allegations began to sound more like quid pro quo harassment and even assault.³⁰ But I believe that the initial lack of scandal stems largely from the fact that harassment is often invoked too lightly and in contexts where it does not really belong, especially on campuses. Supporters of racial and sexual harassment laws should be striving to bring the campus definition of such harassment back in line with its legal definition—and with free speech.

A Short Selection of Examples of Abuses of Harassment Codes on Campus

Any discussion of campus abuse of harassment codes must start with the example of Keith John Sampson, a middle-aged student and janitor at Indiana University–Purdue University Indianapolis. In 2007, Sampson was working his way through college when he was found guilty of racial harassment for reading a book in public. Some of his coworkers were offended by the cover of the book, Notre Dame vs. the Klan, which included a black-and-white picture of a Klan rally.³¹ Even though Sampson explained to them that it was a history book celebrating the defeat of the Klan in a 1924 street fight, the school found Sampson guilty of racial harassment for “openly reading [a] book related to a historically and racially abhorrent subject.”³² Without even giving him a hearing, the administration imposed a death sentence on Sampson’s career: any future employer would be likely to assume that a finding of racial harassment meant Sampson was a Klan member rather than the reader of a book about their defeat.

A student being punished because his university literally falsely judged a book by its cover should have been an irresistible human interest story. But despite the intervention of both the American Civil Liberties Union of Indiana and FIRE, the case received little media attention at the time.³³ Dorothy Rabinowitz published a column about the case in the Wall Street Journal over the summer of 2008, but it never approached the iconic infamy of the “water buffalo” case.³⁴ It seems that most Americans were beginning to take such incidents for granted. I suspect that many view stifling political correctness as a silly, unfortunate, yet mostly harmless part of the collegiate landscape. But as the Sampson case shows, it is far from harmless. Such cases help legitimize knee-jerk reactions to speech that offends, while ingraining a defensive and apologetic attitude about even the most modest exercise of free speech.

Another wild abuse of harassment codes took place at the University of New Hampshire in 2003, when student Tim Garneau was found guilty of harassment, disorderly conduct, and violating the school’s affirmative action policy for making a flyer that joked that girls could lose the “freshman 15” by taking the stairs.³⁵ Garneau posted the flyers because he was angry that some students would take the elevator up just one floor and even down one floor, which slowed elevator service for students who, like him, lived on the seventh floor. The flyers, which were torn down within two hours, read in their entirety: “9 out of 10 freshman girls gain 10–15 pounds. But there is something you can do about it. If u live below the 6th floor takes the stairs. [Image of a slender young woman.] Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes [sic].”³⁶ Even though he apologized to the student body with the intensity of someone who had committed a war crime (rather than a fat joke), Garneau was kicked out of his dormitory and sentenced to mandatory psychological counseling, two years’ probation, and a 3,000-word reflection paper. After his appeal was denied, he had to resort to living out of his car in the cold New Hampshire autumn for weeks. FIRE launched a national publicity campaign about the absurdity and patent unconstitutionality of this abuse of power. Shortly afterwards, the school received a phone call from Jon Stewart’s Daily Show, which wanted to cover the incident. With remarkable speed, the university announced that Garneau would be allowed back into the dorms.³⁷ Jon Stewart apparently cared more about this abuse of rights than Garneau’s fellow students, who largely expressed ambivalence about the school’s misuse of power.³⁸

In 2007, the same year that Keith John Sampson was being punished, Tufts University found a conservative newspaper guilty of two counts of racial harassment.³⁹ The paper, called The Primary Source, had been criticized in December 2006 for publishing a parody Christmas carol called “Oh Come All Ye Black Folk.”⁴⁰ The point of the carol was to lampoon the university’s aggressive attempts to attract black students. When called out for insensitivity, The Primary Source apologized for the joke and the case was forgotten for several months. Later that spring, however, The Primary Source published an ad questioning what the writers saw as the overly rosy depiction of Islam during the school’s “Islamic Awareness Week.”⁴¹ It contained two direct quotes from the Koran, including “‘I will cast terror into the hearts of those who disbelieve. Therefore strike off their heads and strike off every fingertip of them.’ – The Koran, Sura 8:12.” It also pointed out that “In Saudi Arabia, women make up 5 percent of the workforce, the smallest percentage of any nation worldwide. They are not allowed to operate a motor vehicle or go outside without proper covering of their body. (Country Reports on Human Rights Practices 2001),” and that “Ibn Al-Ghazzali, the famous Islamic theologian, said, ‘The most satisfying and final word on the matter is that marriage is a form of slavery. The woman is man’s slave and her duty therefore is absolute obedience to the husband in all that he asks of her person.’” The only factual error I could find in the ad was that it claimed that the seven countries that punish homosexuality by death are all Islamic theocracies. At the time, there were in fact eight Islamic theocracies where homosexuality was a capital offense.

Did this paint Islamic extremism in a nice light? No. Was it one-sided? Yes. But that was the entire point: to present a counterargument to what the paper saw as a one-sided view presented by the university. Too many of us have been conditioned to apologize for words that offend, when open debate is bound to create some offense. Indeed, it should happen. Being offended is what happens when you have your deepest beliefs challenged, and if you make it through four years of college without having your deepest beliefs challenged, you should ask for your money back.

If the complaining students had argued that The Primary Source got its facts wrong, that could have been a constructive or at least interesting debate. But instead, in predictable fashion, the offended students plowed ahead with a harassment claim. Here, the fact that The Primary Source printed largely verifiable information—with citations, no less—was no defense, nor was the fact that the ad concerned contentious issues of dire global importance. Even under U.S. libel law, truth is an absolute defense. Tufts may have made free speech history by being the first institution in the United States to find someone guilty of harassment for stating verifiable facts directed at no one in particular.

I doubt that the Tufts disciplinary board thought through the full ramifications of its actions. If a Muslim student had published these same statements in an article calling for reform in Islam, would that be harassment? An atheist saying religion is bunk? A Protestant railing against Catholicism? Nonetheless, a judicial panel consisting of both faculty and students found the publication guilty.⁴² After intense pressure from FIRE, the president of Tufts, Lawrence Bacow, eliminated the sanctions against The Primary Source in the fall of 2007, but he left the harassment finding intact.⁴³ (Tufts would be “awarded” our June 2008 Speech Code of the Month for its policy banning “unwelcomed communications such as phone calls, misuse of message boards, email messages, and other behaviors calculated to annoy, embarrass, or distress.”)⁴⁴

Some other notable abuses of harassment rationales include a 2005 case in which the University of Central Florida put a student on trial for creating a group on Facebook that posted “Victor Perez is a jerk and a fool” when Perez was running for student government.⁴⁵ In 2004, at Occidental College in California, a student disc jockey was found guilty of harassment on his radio show, not only for making fun of his fellow members of student government, but also for cracking jokes about his own mother. In a classic administrative overreach, the student was charged for disparaging “treatment of the category [of] ‘mother.’”⁴⁶

As troubling as such incidents are for students, it may be professors who have the most to fear from the overzealous reinterpretation of harassment codes. I will leave much of this discussion to Chapter 10, but it is worth noting some cases here. In 1999, in one of the first cases I ever worked on, Mercedes Lynn de Uriarte, a professor at the University of Texas at Austin, was investigated for “ethnic harassment” of another professor. Interestingly, both de Uriarte and the accusing professor were Mexican American and the complaint accused her of both not mentioning her accuser’s ethnicity when it was helpful to do so and also mentioning it when it was not helpful.⁴⁷ The facts suggested that the ethnic-harassment accusation was an excuse for the university to retaliate against de Uriarte for filing a grievance.

Another incident targeting faculty took place in 2011–2012 at Purdue University Calumet, where nine complaints of harassment or discrimination were filed against a professor for criticizing Islam and Muslims on Facebook and in class. Some of the complainants never took his class, and many of them left unspecified what speech, exactly, they were complaining about.⁴⁸ On November 6, 2011, the professor posted a photo on Facebook of “Christians killed by a radical Muslim group” in Nigeria, adding: “Where are the ‘moderate’ Muslims[’] reaction[s] to this? Oh, I forgot they are still looking at the earth as flat according to the idiot Mohammad, may his name be cursed.” While I can understand how this speech might have hurt some students’ feelings, feeling hurt and being harassed are categorically different things.

In 2011 the University of Denver provided another example of how far the concept of harassment has morphed from its legal origins, when Professor Arthur Gilbert was declared guilty of sexual harassment and sentenced to mandatory “sensitivity training” because the content of his class “The Domestic and International Consequences of the Drug War” was considered too racy.⁴⁹ According to the syllabus, one of the themes in the course was “Drugs and Sin in American Life: From Masturbation and Prostitution to Alcohol and Drugs.”⁵⁰ How, precisely, you can have a meaningful discussion of these topics without offending anybody is beyond me. While Denver faculty, FIRE, and the American Association of University Professors (AAUP) rose to Professor Gilbert’s defense, the university refused to reopen the case.⁵¹

These are just a few of the cases that illustrate how often “harassment” is used as an all-purpose accusation for speech that offends someone. This abuse became so widespread that in 2003 the Office for Civil Rights (OCR) of the U.S. Department of Education—the department that polices the enforcement of federal harassment regulations—issued a letter of clarification to practically every single college in the country recognizing that harassment rationales were being abused.⁵² It stated unequivocally that “No OCR regulation should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.” The letter further stated, “Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.” Nonetheless, most colleges still maintain unconstitutional harassment codes today.

The Department of Education Muddies the Waters

The story of harassment codes on campus is largely one of universities brazenly ignoring the right to free speech and the law concerning harassment as they pass speech codes that, when challenged, are almost laughed out of court. Since 1989, there have been nearly two dozen court cases involving campus speech codes.⁵³ Almost all of them have challenged a substantially overbroad harassment code, and virtually all of these challenges have been successful.

So there was good reason to hope that the days of speech codes would be numbered, but in April 2011, the Office for Civil Rights of the Department of Education appeared to step back from the strong statement it had made in 2003 in favor of rational harassment codes and free speech. The agency issued a nineteen-page letter dictating to colleges the procedures they must follow in sexual harassment and assault cases.⁵⁴ Among its many troubling points is a requirement that sexual misconduct cases be adjudicated using the lowest possible standard of evidence allowable in court (which will be discussed at length in Chapter 6). Moreover, the letter made no mention of the First Amendment or free speech, ignoring the way that vague and broad definitions of harassment have been used to justify campus speech codes and censorship. By mandating many procedural steps that colleges must take to respond to allegations of sexual harassment—while failing to mandate a consistent, limited, and constitutional definition of harassment—OCR has effectively encouraged campus officials to punish speech they simply dislike.

Along with a remarkably broad coalition of groups—including the Tully Center for Free Speech at Syracuse University, the National Coalition Against Censorship, the National Association of Scholars, the Alliance Defense Fund Center for Academic Freedom, Feminists for Free Expression, Woodhull Sexual Freedom Alliance, the American Booksellers Foundation for Free Expression, Accuracy in Academia, and the American Council of Trustees and Alumni—FIRE wrote to OCR in January 2012 requesting that it publicly affirm the Davis standard as the controlling definition for harassment on campus.⁵⁵ I also published an article in the Washington Post the same day that we mailed the letter, explaining:

By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected. In one move, OCR could rid campuses of a substantial portion of all speech codes…. Most important, by recognizing the Davis standard, the OCR would send a message that free speech and free minds are essential to—not incompatible with—the development of creative, critical and innovative thinkers on our nation’s campuses.⁵⁶

Thus far, we have received no response from OCR. Of course, OCR can enforce regulations, but it cannot overrule the First Amendment. While the agency’s new letter may embolden universities to enforce their speech codes, I’m confident that any attempt to do so will be consistently shot down by the courts.

The Harm of Campus Speech Codes That Are “Just on the Books”

Campus speech codes do, of course, have their defenders. When forced to concede that the codes do not meet First Amendment standards, these defenders often use the same rationalization: “What’s the big deal? Those speech codes are never enforced!” As you have seen already, that assertion is wrong. These codes are enforced, often against unambiguously protected speech.

But let’s play the game as if it were true. What is the harm of speech codes if they are merely “on the books”? Plenty. The very existence of these codes poses serious problems. First, they create a “chilling effect”: if people have any reason to fear that they might be punished for offering an opinion, most people will refrain from doing so. This creates a campus atmosphere in which some students won’t talk about important issues, while others share their opinions only around likeminded people. The result is polarization and a failure to develop a deeper understanding of controversial issues.

Speech codes are also harmful in and of themselves, because they miseducate students about free speech, their rights, the rights of others, and what it means to live in a pluralistic democracy. Some scholars, including Robert Post, dean of Yale Law School, see education’s role in serving the proper functioning of democracy as the primary reason for the existence of academic freedom and view the academy as a place to instill an understanding of democratic values.⁵⁷ It is therefore inexcusable that institutions of higher education, through their unconstitutional speech codes, are teaching students the exact opposite of the lessons they are supposed to be learning about democracy, pluralism, and expression. In other words, by propagating speech codes, universities are lying to their students about what their rights are and misinforming them about how speech relates to the functioning of democracies, thus undermining the very reason for academic freedom.

So what lesson have campus speech codes given to a generation or more of students? That censoring certain viewpoints is both constitutionally and morally correct. Ask students today if they believe in free speech, and I suspect most would answer “yes.” But if you dug deeper, you would discover that many students have been so badly misinformed about what it means to live in a free society that they accept selective censorship as a fact of life. They have never learned how crucial hearing a multitude of opinions is to our entire intellectual system. Making the most of free speech is a habit and a discipline that must be taught, and speech codes short-circuit that process.

The “Silent Classroom”

As I mentioned in the introduction, the venerable Association of American Colleges and Universities unveiled a massive study in 2010 called Engaging Diverse Viewpoints.⁵⁸ The study asked a sample set of 24,000 students about their feelings and views concerning diverse viewpoints on campus. One question asked whether the students thought it was “safe to hold unpopular views on campus.” Think about how this statement is worded. It does not ask if students “feel confident that they can express views that are unpopular on campus,” but rather whether it is “safe” to merely “hold” them on campus. The question seems like a whitewash, designed to garner an inaccurately positive response that would allow the AACU to say, “All is fine on campus.” Even those who would never make an unpopular argument on campus wouldn’t go so far as to say they wouldn’t feel “safe” merely believing one, right? Actually, they would. Among the college seniors in the survey sample, only 30.3 percent answered that they strongly agreed that “It is safe to hold unpopular views on campus.”⁵⁹

Even more alarmingly, the study showed that students’ sense of the safety of expressing unpopular views steadily declines from freshman year (starting at 40.3 percent) to senior year.⁶⁰ College seems to be the place where bad ideas about free speech go to get even worse.

But the students were downright optimistic compared to the 9,000 “campus professionals” surveyed, including faculty, student affairs personnel, and academic administrators. Only 18.8 percent strongly agreed that it was safe to have unpopular views on campus.⁶¹ Faculty members, who are often the longest-serving members of the college community and presumably know it best, scored the lowest of any group—a miserable 16.7 percent!⁶²

While it still might strike some readers as unlikely that anything could stop students—especially undergraduates—from expressing their opinions (at all times and in all ways), the fact that the current generation shies away from meaningful debate has been a much-discussed phenomenon in academia for at least a decade now.

My first run-in with the mystery of the “silent classroom” came when I read New York Times columnist Michiko Kakutani’s March 2002 article “Debate? Defense? Discussion? Oh, Don’t Go There!”⁶³ Kakutani engaged several authors, social critics, university professors, and the dean of students at Princeton to get to the bottom of the “reluctance of today’s students to engage in impassioned debate.” Amanda Anderson, the author of The Way We Argue Now and an English professor at Johns Hopkins University, offered one of the more compelling theories on why students are hesitant to speak their minds: “It’s as though there’s no distinction between the person and the argument, as though to criticize an argument would be injurious to the person…. Because so many forms of scholarly inquiry today foreground people’s lived experience, there’s this kind of odd overtactfulness. In many ways, it’s emanating from a good thing, but it’s turned into a disabling thing.”

Kakutani went on to discuss other theories that range from the deep and thoughtful—including her argument that relativism and the broad acceptance of the “principle of subjectivity” make meaningful argument seem less important—to the somewhat silly—referencing Oprah Winfrey, 9/11, the popularity of the drug ecstasy, and “the often petty haggling between right and left, Republicans and Democrats, during President Bill Clinton’s impeachment hearings and the disputed presidential election of 2000.”

Given the range and breadth of what she was willing to consider, it was striking to me that she never mentioned the fact that students and faculty get in trouble for expressing unpopular opinions. Surely even the vaguest fear of being punished for speaking your mind would have a more profound effect on the state of debate on America’s campuses than, say, the off-putting “spectacle of liberals and conservatives screaming at each other on television programs like ‘Crossfire’”?

Kakutani’s piece was one of several that came out around that time bemoaning the disappearance of debate and discussion on college campuses but failing to consider speech codes and campus punishments as contributing factors. For example, months earlier, University of Massachusetts Amherst student Suzanne Feigelson wrote an article in Amherst Magazine titled “The Silent Classroom” that gained substantial attention.⁶⁴ Feigelson considered many factors that cause students to “stop talking in class about midway through freshman year.” She emphasized concerns about sounding stupid or redundant, classmates judging them, being embarrassed, or not being cool. Feigelson neglected, however, to examine the effect of the implicit threat of punishment for badly received statements of opinion. This is especially surprising given that Feigelson attended UMass Amherst, a college that has repeatedly punished students for clearly protected expression. The very same fall that Feigelson wrote “The Silent Classroom,” UMass received negative publicity for permitting a rally in opposition to a military response to the 9/11 attacks but refusing to allow students to rally in support of the newly minted “war on terror.”⁶⁵ The students held a rally anyway, but their materials were reportedly publicly vandalized with no response from the university. Indeed, UMass Amherst maintains unconstitutional speech codes limiting expression both within the classroom and outside of it.⁶⁶ Might not the detailed and explicit speech code banning classroom speech that is “clearly disrespectful” have something to do with a classroom environment where students are hesitant to speak their minds?

At the time these articles were published, I was in my first year at FIRE. I was neck deep in hundreds of case submissions dating back to the organization’s founding two years before, reading story after story of students and faculty members alike being punished for protected speech, and much of which—far from being “hate speech”—was remarkably tame by the standards of the larger society. If these commentators on student silence had bothered looking, they would have found numerous examples of campus censorship that were going on at that very moment.

In fact, 2001–2002 brought a brief jump in media awareness of campus censorship in the wake of the September 11 attacks. Some cases that received national attention included one at Central Michigan University, where students were told by administrators to take down pictures of American flags, eagles, and a San Francisco Chronicle article titled “Bastards” because they all purportedly violated the policy on “hate related items and … profanity.”⁶⁷ At San Diego State University, a student from Ethiopia was threatened with punishment for chastising Saudi students who he said had expressed delight at the 9/11 attacks.⁶⁸ The Saudi students apparently didn’t know that Zewdalem Kebede also spoke Arabic and could understand them. Despite the fact that Kebede was one student arguing against four, he was the one brought up on charges of being “verbally abusive.” Meanwhile, at UC Berkeley, the home of the free speech movement, members of the student government attempted to punish the student newspaper for running a cartoon that showed the 9/11 hijackers surprised to find themselves in hell.⁶⁹ I would learn that characterizing speech critical of Islamic terrorism as offensive to all Muslims—which, if you think about it, is pretty offensive in itself—is a common tactic on campus.⁷⁰

Even professors were not safe. A University of New Mexico professor was threatened with punishment for joking on 9/11 that “anyone who can blow up the Pentagon has my vote.”⁷¹ The professor’s remark caught the attention of mainstream and conservative media alike, and he apologized profusely for his insensitive joke, but the incident led to his early retirement from teaching.⁷² Professors at both Duke and Penn were chastised by administrators for posting articles in favor of the war on terrorism, while professors at the City University of New York were threatened with punishment for holding a teach-in opposing a strong American reaction to 9/11.⁷³

These were only a handful of the 9/11-related cases that affected faculty and students, right, left, and center. In spite of the media attention these controversies received, no one made the connection between the culture of silence (or, at least, excessive reticence) on campus and the fact that students were increasingly aware that they could get in trouble for simply expressing their opinions. Even the faintest threat of actual punishment is a far more efficient and effective way to stifle debate than the reasons suggested by Kakutani and Feigelson. A silent classroom is a natural—indeed, inevitable—result of an educational atmosphere full of speech restrictions and a culture that teaches students to shy away from controversy.

Speech Codes, Juan Williams, and the Danger of Honest Talk

Too few Americans know that campus speech codes are real and more numerous than they were in their supposed heyday of the early ’90s. The fact that students can get in trouble for “politically incorrect” speech is probably more commonly accepted, but is not regarded as a particularly serious problem. At Stanford, I knew many people who would applaud that practice. I also saw this attitude reflected among some of my fellow columnists in their ambivalent or even supportive reaction to NPR’s decision to fire the commentator Juan Williams in 2010.⁷⁴

For those of you who didn’t follow the case, Williams is an African American civil rights historian and a journalist who had been working for National Public Radio since 1999. In a debate with Bill O’Reilly on Fox News, Williams conceded that he felt nervous getting on a plane when he saw Muslims in traditional garb getting on, as well. Williams explained in his 2011 book Muzzled,

This was not a bigoted statement or a policy position. It was not reasoned opinion. It was simply an honest statement of my fears after the terrorist attacks of 9/11 by radical Muslims who professed that killing Americans was part of their religious duty and would earn them the company of virgins in heaven. I don’t think that I’m the only American who feels this way.⁷⁵

Note that Williams made his comment while arguing against lumping all Muslims together with terrorists and against racial profiling. A major obstacle to getting a handle on both race relations and religious tensions is that people are afraid to be candid about how they really feel towards people of other cultures and faiths. Williams took a rare step and admitted to an alltoo-human fear, and for that he was fired from his job. The day after he was fired, NPR’s CEO, Vivian Schiller, told an audience at the Atlanta Press Club that Williams should have kept his feelings about Muslims between himself and “his psychiatrist or his publicist.”⁷⁶ Schiller’s words sent a powerful message: “We don’t really want to know your real feelings, fears, and emotions. If they might offend, shut up.”

It is true that the situation at NPR is distinct from that on campus, because NPR can fire an employee for good or bad reasons, while public colleges may not legally expel students for their opinions. Yet the message sent by NPR is precisely the one that speech codes and viewpoint-based punishments send. And the result is cowed students, silent classrooms, and whispers in cliques rather than serious, meaty, honest talk.

As you will see, the problem goes far beyond the cliché of “PC run amok,” to the larger question of what people do when handed the power to shut down speech. Administrators, being people, exercise this power for both good and bad reasons, for higher purposes and selfish ones. Students and even faculty members learn to watch what they say, or to retreat into groups of the likeminded.