FIRE defends campus speech-code survey

Thursday, May 3, 2007

An April 20 article in the Chronicle of Higher Education criticized
the work of the Foundation for Individual Rights in Education after it published
a survey of speech codes at colleges and universities across the nation.

Jon B. Gould, the author of the article and an assistant professor of
government and politics at George Mason University, challenged FIRE’s December
2006 survey of speech codes. The report compiled FIRE’s analysis of 330 schools
and said more than 68% of them had unconstitutional speech codes.

Calling FIRE “an increasingly ideological organization that exaggerates the
facts to make political hay,” Gould branded its staffers “ideological

Gould made a four-fold argument against FIRE’s findings, to which the
organization responded with a series of articles on its Web site.

First, Gould said that the inclusion of both public and private schools in
the report showed inconsistency. Second, he compared FIRE’s results with the
results of a similar survey that he had conducted and challenged the group’s
methodology. Third, Gould disagreed with FIRE’s characterization of
sexual-harassment policies as speech codes. Fourth, Gould accused FIRE of making
judgments based on selective quotations from university policies.

Inconsistency. Gould asserted that, by including both public and
private schools in its survey, FIRE mixes apples and oranges, enjoying “any
opportunity — whether at public or private institutions — to challenge what it
considers ‘thought control’ from self-appointed, and not inconsequentially
liberal, academic censors.” He cited its recent campaigns against Brown
University, Pace University and Johns Hopkins University — all three private
institutions, which are not bound to provide First Amendment speech protections
as public campuses are.

Chris Perez, a program officer at FIRE, responded, “We at FIRE believe that
when a school, public or private, makes a promise to a student — whether in a
student handbook or a brochure or a speech from the president, that school is
morally and legally bound to honor that promise.”

FIRE included 104 private schools in its survey, evaluating them on the basis
of the values listed in their mission statements or handbooks instead of on the
Bill of Rights, which binds public universities. FIRE Vice President of
Operations Robert Shibley wrote, “When we find a school that professes to value
free expression or academic freedom, we evaluate its speech codes to see if its
choices reflect those values.”

Survey comparison. Gould challenged FIRE’s research paradigm by
comparing it with his similar survey. Using criteria from a similar First
Amendment Center survey, Gould evaluated the hate-speech codes at 100 schools
from 1992-1997. He found that 46% of schools had policies that restricted hate
speech, but only 9% of them were unconstitutional. In contrast, he said FIRE
found that 96% of schools had unconstitutional policies.

FIRE Senior Program Officer William Creeley responded to Gould’s
methodological critiques. He said that Gould combined FIRE’s red- and
yellow-light ratings to reach the 96%, whereas FIRE’s report said only 69% of
schools had unconstitutional policies. (A red-light rating was given to a school
with a policy that clearly and substantially restricts free speech. A
yellow-light rating was for policies that may be interpreted to restrict speech
or prohibit only narrow types of speech.) Creeley said two main factors
contributed to the discrepancy in the two surveys’ results. First, they used
different rating systems and different criteria. Second, FIRE surveyed a larger
number of universities — 330 to Gould’s 100.

Creeley also observed differences in the policies surveyed. “We [FIRE] review
any written policy maintained by the school with an impact on campus speech.
… Gould’s study, on the other hand, is shockingly vague about what exactly
constitutes a ‘college hate speech code’ or a ‘speech policy,’ and proper
definitions of either term are never supplied.”

Sexual harassment. Gould disagreed with the characterization of
sexual-harassment policies as speech codes. The debate between FIRE and Gould
centers on the definition of sexual harassment and what speech is protected by
the First Amendment.

Gould cited Title VII of the Civil Rights Act to define harassment, which
according to the Equal Employment Opportunity Commission, “includes practices
ranging from direct requests for sexual favors to workplace conditions that
create a hostile environment for persons of either gender.”

Gould also noted the Supreme Court’s 1992 opinion in R.A.V.
v. St. Paul,
which says “that sexist or sexually degrading expression could
be litigated as ‘a proscribable class of speech … within the reach of a statute
[Title VII] directed at conduct rather than speech.’ More recently courts have
created a private right of action under Title IX to apply sexual-harassment
standards to academe.”

In an April 30 column in The New York Times, Stanley Fish, a professor
of law at Florida International University, attempted to clarify the differing
views on sexual harassment offered by Gould and FIRE. He wrote: “Much of the
disagreement between Professor Gould and FIRE turns on the technical question of
what does and does not amount to harassment. FIRE follows a 1999 Supreme Court
decision (Davis v. Monroe County) in asserting that speech is harassing,
as opposed to being merely offensive, if it is ‘so severe, pervasive, and
objectively offensive that it effectively bars the victim’s access to an
educational opportunity or benefit.’ Professor Gould’s threshold for deeming a
form of speech harassing would be lower and would be tied to what he considers
to be the prevailing norms of ‘civil society’.”

Gould said the problem with FIRE’s criticism of sexual-harassment policies
was that they are necessary to defend against Title VII and IX lawsuits.

Samantha Harris, FIRE’s director of legal and public advocacy, said that
FIRE’s criticism of sexual-harassment policies stems from universities’ broad
definitions of harassment, which she considers outside of the legal definition.
As an example, she cited the Kansas State University policy, which says:
“Examples include sexual teasing, jokes, remarks or questions … facial
expressions, winking, throwing kisses or licking lips, spreading rumors …
staring, looking a person up and down.”

Harris said, “The problem is that a large number of colleges and universities
define sexual harassment to include speech that categorically does not meet the
stringent legal definition of harassment. … Universities cannot simply make
protected speech unprotected by deeming it ‘sexual harassment’.”

Creeley also said that from 1989 to 2007, seven federal cases have challenged
university speech codes. Six of them overturned unconstitutional harassment

Selective quotations. Gould accused FIRE of evaluating selective
quotations from speech codes. He cited the speech code at the University of
Michigan at Ann Arbor as an example. FIRE criticized the portion of the code
that reads, “Individuals should not be unwittingly exposed to offensive material
by the deliberate and knowing acts of others.” However, Gould noted that this
was just a portion of the code and that it also says, “Freedom of expression and
an open environment for sharing information are valued, encouraged, supported,
and protected. … Individuals must be able to choose what they wish to access for
their own purposes.”

Shibley said the other statements, which FIRE did not include, were modifiers
of the original rule. If a student broke that rule, he or she could still be
punished in spite of the other clauses. “A public university cannot
constitutionally punish one student for merely ‘offending’ other students, via
electronic communication or otherwise, and the fact that students have
permission to access whatever they like when they are by themselves is

The debate between Gould and FIRE has caught the attention of others who have
spoken out in support of FIRE.

Mark Goodman, executive director of the Student Press Law Center, wrote in an
email to the Free Expression Network, “By our [SPLC’s] measure, colleges could
use a lot of improvement when it comes to protecting unpopular expression on
both the right and the left. The ‘ideological opportunists’ out there fighting
against restrictions on speech are responsible for prompting policy changes that
protect the speech of everyone. For that, they deserve to be commended.”

David French, former president of FIRE and current senior legal counsel at
the Alliance Defense Fund and director of ADF’s Center for Academic Freedom,
wrote on National Review Online, “I will believe that FIRE exaggerates the
prevalence of speech codes the day that a federal judge upholds as lawful a code
that FIRE labels ‘red’ in the Spotlight database. We can argue about legal
interpretations all day long, but federal judges make the ultimate decision, and
so far FIRE hasn’t gotten one wrong yet.”

In response to Gould’s claims that FIRE is “increasingly ideological,” FIRE
president Greg Lukianoff said, “FIRE defends the rights of those from all points
of the political spectrum and we take flack from all points of the political
spectrum about one case or another — which indicates to me that we are doing
something right.”

Melanie Bengtson is an intern at the First Amendment Center and a
sophomore studying developmental politics at Belmont University in Nashville,