Speech codes and apologies

Fighting the good fight

[Reprinted from Issues & Views September 8, 2003]

Continuing its mission to return free speech to college campuses, the Foundation for Individual Rights in Education (FIRE) is challenging Shippensburg University's speech code in federal court. The Pennsylvania university's "Racism and Cultural Diversity" code defines as punishable harassment any "unsolicited, unwanted conduct which annoys, threatens, or alarms a person or group." The code also punishes "inflammatory" speech, speech that "provokes, and speech that causes "subordination." In addition, it outlaws certain thoughts by requiring that "every member of the community" mirror the official views of the university administration "in their attitudes and behaviors."

Just after the attacks on 9/11, students were ordered by the administration to remove any messages or flyers on display on their dormitory doors that might be "hostile to Osama bin Laden and/or supportive of the American military effort in Afghanistan." Such displays were deemed "offensive to other students and violated the Code of Conduct."

Over the several months since FIRE launched its lawsuit, Shippensburg's administrators began dismantling some of their repressive policies. But some of these adjustments appear to be merely cosmetic, as the university works to present a conciliatory face to the court, while retaining the essence of its unconstitutional restrictions on free speech. In commenting on the administration's mild alterations of its code, FIRE's Greg Lukianoff declared, "The changes that Shippensburg has made to its policies amount to an admission that the codes it published, distributed, and put on its website -- until our lawsuit -- were unconstitutional. These changes, however, must be only the beginning. The speech codes that remain still punish expression that is protected by the Constitution. Shippensburg must fulfill its obligations to the First Amendment."

In a surprise move, on September 4, the U.S. District Court for the Middle District of Pennsylvania issued a preliminary injunction that ordered Shippensburg's president, Anthony Ceddia, to cease enforcing provisions of the university's speech code. The court also denied the university's motion to dismiss the case. Thor Halvorssen, FIRE's executive director, exulted, "This is a great victory and a vital step in the struggle against the scandal of unconstitutional campus censorship at public colleges and universities." FIRE is continuing the suit to trial and will seek to make the preliminary injunction permanent.

On a similar front, earlier this year, the Rutherford Institute, a civil liberties advocacy group, protected the right of a middle school teacher in Covington, Georgia, to speak freely with her students about the war in Iraq and to display a peace poster in her classroom.

Principal Gary Mistovich of Veterans Memorial Middle School had ordered teacher Elaine Kotler and all faculty to take only "pro-war" positions on the Middle East, when discussing the subject with their students. Members of the faculty were told to express views "that are favorable to the military, President Bush and the Bush Administration's position on the war." The principal more than intimated to Kotler that her job might be at stake, if she refused to adhere to the policy he outlined.

After Rutherford attorneys intervened on Kotler's behalf, informing the school's administrators of the faculty's free speech rights, the principal apologized and assured all staff that they would not be denied the right to express their views about the Iraqi conflict and that Kotler would have the right to display her choice of posters in her classroom. Rutherford's president John Whitehead responded, "Our schools should be bastions of free speech, the very thing our troops are fighting for."

And, on the subject of free speech, comes "clarification" from the government. It seems that many academic administrators have been under the delusion that by restricting free speech on college campuses and denying students First Amendment protection, they were obeying regulations laid down by the Office of Civil Rights of the U.S. Department of Education. Worried about those students who claim to be "offended" by the words of others that they deem "harassment," administrators have bent over backwards to appease such students.

Given the politically correct inclinations of most academics, it is open to question whether confusing OCR regulations were misinterpreted, or if such regulations were used as an excuse to implement speech codes, in order to bring about conformity .

On July 28, the OCR sent out a letter to administrators at colleges and universities across the country informing them that "OCR's regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment." It will be interesting to watch and see what affect, if any, this "clarification" has on future policies at academic institutions.

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