By Greg Lukianoff and Adam Goldstein…

Free speech on campus has been in the news recently, and we are happy to see the fight our organization, the Foundation for Individual Rights in Education (FIRE), has been waging for almost 20 years get the attention it deserves. To get to the bottom of the disturbing, illiberal trends we’ve seen on campus lately, Greg co-authored a new book, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure, with social psychologist and NYU Stern School of Business professor Jonathan Haidt. While the book goes well beyond free speech – it’s kind of a social science detective story – the bottom line for campus censorship is simple: The censors change, but speech codes remain a favorite tool for silencing students and faculty.[1]

A Brief History of Modern Campus Speech Codes[2]

Starting in the late 1950s, Supreme Court (and lower court) rulings applying the First Amendment to campus gradually became highly protective of the freedom of speech of both faculty and students. But by the mid-1980s, some on campus were increasingly looking for rationales to limit free speech rather than expand it. These newfangled speech codes were roundly defeated in court, but they proliferated anyway. Virtually all of the speech codes of this era were presented as anti-harassment codes, intended to curtail speech deemed racist, sexist, homophobic, or otherwise bigoted or intolerant.

For example, Doe v. Univ. of Michigan, the first speech code challenge in the era of “politically correct” codes (very roughly, 1985-1995), involved “The University of Michigan Policy on Discrimination and Discriminatory Harassment.” The policy prohibited a great deal of protected speech, including “demeaning” speech. In practice, the policy was disproportionately invoked against students of color, rather than improving their environment. (That is a recurring theme of speech regulations in general. Granting authority figures the ability to regulate speech rarely accrues to the benefit of the marginalized.)

Some universities attempted to combine the anti-harassment rationale and the fighting words doctrine. Among them was Greg’s alma mater, Stanford Law School, whose speech code was defeated in court just two years before he started there – though that fact was rarely, if ever, mentioned while he was there.

Despite defeats such as these, schools kept enacting more speech codes.[3] In 2006, our organization, the Foundation for Individual Rights in Education (FIRE), found that roughly 75% of the 334 universities we evaluated maintained “red light” speech codes. By “red light,” we mean the institution maintained at least one policy that both clearly and substantially restricted freedom of speech. Fortunately, in a new set of lawsuits starting in 2003, some of which were coordinated by FIRE and many others by the Alliance Defending Freedom, there has been a nearly unbroken chain of defeats for campus speech codes. As of this writing, the percentage of “red light” schools is down from 75% to about 33%, and the number of “green light” schools is up from eight institutions to an all-time high of 42.

That has not stopped the practice of colleges attempting to characterize protected speech as harassment. In a February 2015 Chronicle of Higher Education essay, Northwestern University professor Laura Kipnis criticized what she saw as “sexual paranoia” on her campus and the university’s handling of a Title IX lawsuit; after her piece was published, Kipnis was herself subjected to a Title IX investigation for, among other things, creating a “hostile environment” and a “chilling effect” on new reports by writing her essay. When Kipnis wrote a book critical of that process, she was subjected to another Title IX investigation. From beginning of the first Title IX complaint to the end of the second, the process took more than two years. (A defamation suit filed against Kipnis by a student continues.)

In 2015, Louisiana State University fired professor Teresa Buchanan (despite a contrary recommendation from a faculty panel) for “sexual harassment.” Buchanan’s offense was to occasionally use profanity and sexual language in front of her adult students. She sued; a district court ruled in favor of the school at summary judgment, and she is appealing that decision. (FIRE is sponsoring Buchanan’s case as part of our Stand Up For Speech Litigation Project.)

Louisiana State University fired Buchanan under an astonishingly broad definition of harassment: “unwelcome verbal, visual, or physical behavior of a sexual nature.” But its use was no accident; the definition tracks the one proposed by the Department of Education and Department of Justice in a supposed May 2013 “blueprint” for anti-harassment codes included in a settlement letter with the University of Montana. This language doesn’t track the Supreme Court’s standard for harassment in this context – that the conduct be “so severe, pervasive, and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Without the requirement that the conduct be objectively offensive, anything can be a form of harassment, as long as a student is willing to claim he or she subjectively found it offensive.

Fortunately, this is one problem that may soon be resolved. Last month, the New York Times reported that it obtained a leaked draft of the new Title IX regulations the Department of Education apparently plans to offer soon for public notice and comment. According to that report, the proposed rules will directly include the requirement that harassment be severe, pervasive, and objectively offensive.

That substantive shift, while welcome, comes at a time when a student wanting to challenge a speech code faces some of the highest procedural hurdles in decades. Two current cases illustrate how courts have misapplied the doctrine of mootness and the requirement of standing in ways that frustrate attempts to vindicate student rights.

Mootness and Standing Rulings Threaten Student Civil Rights

In May, the U.S. District Court for the Northern District of Georgia dismissed Uzuegbunam v. Preczewski, a First Amendment lawsuit filed by a student (represented by the Alliance Defending Freedom) against Georgia Gwinnett College. Uzuegbunam was stopped from distributing religious literature on campus because he didn’t have a permit to do so outside of two small free speech zones. FIRE has long had concerns that courts are becoming too willing to dismiss cases as moot in the First Amendment context, and as if to validate this concern, the district court found that Uzuegbunam’s claims for injunctive and declaratory relief were moot – in part because the school had modified its policy, and in part because Uzuegbunam had graduated before the case had come to trial.

The court went on to dismiss plaintiffs’ claims for nominal damages, all other claims being moot. The case is being appealed, and FIRE has filed an amicus curiae brief in support of the plaintiffs. If it is allowed to stand, however, the district court’s ruling will make it very difficult for a student to challenge a speech code. Most students at four-year nonprofit colleges graduate within four years. Meanwhile, the median time it took a federal district court to complete a trial in 2015 was 25.2 months. If graduation moots both injunctive and nominal damages claims against a school, as the Uzuegbunam court ruled, a community college student would almost never keep standing long enough to complain about First Amendment violations. That’s awfully convenient for the public officials who staff such institutions.

What about the modification of the policy? Since day one, nearly every time FIRE contacts a school about a restrictive speech code, the college says it was already “under review.” This dubious and convenient claim is so common, it’s a running internal joke at FIRE. But more importantly, dismissing a case because a school voluntarily withdraws a bad policy (but does not admit it was unconstitutional) rewards colleges for refusing to reform until the last minute. Colleges also have a history of not-quite-abandoning a bad policy.

But mootness is only one of two procedural hurdles that seem to be rising to prevent students from meeting them. The other is standing, and the case demonstrating that threat to civil rights is the Fourth Circuit’s recent decision in Abbott v. Pastides. (This case is part of FIRE’s Stand Up for Speech Litigation Project.)

The facts of Abbott arose at the University of South Carolina in the fall of 2015. Members of the campus chapters of Young Americans for Liberty and the College Libertarians, including Abbott, put up posters on campus with examples of censored speech from other campuses. Three students complained that the posters were “offensive” and “triggering.” Administrators sent Abbott, one of the event’s organizers, a “Notice of Charge” accusing him of discrimination under a policy that listed “objectionable epithets” as potentially harmful conduct. The university later wrote Abbott to say it was not planning to pursue the investigation further, but only after several weeks, and it did not address the possibility that the complaining students might choose to appeal. While the complaints were being reviewed, the accused students were told they could not discuss them with anyone.

Both the district court and the Fourth Circuit panel held that Abbott lacked standing to mount a facial challenge against the rules that led to the investigation because, in short, the court didn’t believe that a weeks-long investigation into protected speech would create an “objectively reasonable” fear of enforcement. The Fourth Circuit is wrong in a number of ways, the most obvious being that being “charged” with discrimination and subjected to an investigation that could result in expulsion would indeed create a “chilling effect” on a student of reasonable firmness. A cert petition is likely.

Abbott represents a marked departure from the relaxed standing requirements used in prior freedom of speech cases, especially those involving speech codes. In 1989’s Doe v. University of Michigan, for example, the federal district court held that the speech code there at issue had been enforced “so broadly and indiscriminately” that Doe, a psychology student, had standing to challenge it because there was a “realistic and credible threat that Doe could be sanctioned were he to discuss certain biopsychological theories,” even though Doe hadn’t actually been threatened with enforcement of the policy.

Uzuegbunam and Abbott represent a trend that undermines student speech not by directly attacking First Amendment rights, but by limiting the people who can vindicate them, and the amount of time they have to do it. At some point, a civil liberty ceases to have meaning if courts won’t review its violation.

Ways To Stand Up for Free Speech on Campus

In conclusion we wanted to offer five things you can do to help promote free expression on campus, whether you’re a faculty member, a student, or an alum:

1)     Push for your university to endorse the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”) on free expression. So far, 45 institutions have adopted the statement, designed to “recommit the university to the principles of free, robust, and uninhibited debate.”

2)     Get your campus to earn a “green light” speech code rating from FIRE. Since 2006, the number of institutions with “green light” policies has risen by a factor of 5 from just eight to 42.

3)   Explain the deep philosophy that undergirds free speech and academic freedom early and often. Every college orientation should include an in-depth discussion of why free speech, academic freedom, and freedom of inquiry matter.

4)   Don’t contribute to the outrage cycle. When you see outrage mobs forming on either the right or the left, be a voice against the mob and oppose the firing of administrators, professors, or students for expressing their opinion, even when their words personally offend you.

5)   Stand up for yourself. If you are a professor or a student who faces retaliation for expressing your opinion, don’t be afraid to speak out. FIRE can help.

Jonathan and Greg think of the solutions section of their book as just the start of the discussion.[4] If you have ideas for solutions that help protect freedom of speech and/or that encourage dialogue across lines of political difference, please let Adam know and he’ll share it with Greg and Jon.

[1] To a large extent, this is a summary of blog posts we wrote for the Volokh Conspiracy; to see these arguments at length, see the links here.

[2] FIRE defines a speech code as any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large. When we talk about the campus “speech codes movement,” we begin with the proliferation of speech codes in the 1980s, which followed the apparent victory of free speech on campus both in the culture and in the courts in the 1960s and ‘70s. For simplicity’s sake, this article focuses on public colleges, which are bound by the First Amendment. You can read more about FIRE’s stance on private colleges here, and on religious colleges here.

[3] The longevity of speech codes should at least partially be attributed to Kaplan’s Law of the Instrument. “We tend to formulate our problems in such a way as to make it seem that the solutions to those problems demand precisely what we already happen to have at hand. With respect to the conduct of inquiry, and especially in behavioral science, I label this effect ‘the law of the instrument.’ The simplest formulation I know of the law of the instrument runs this way: give a small boy a hammer and it will turn out that everything he encounters needs pounding.” Abraham Kaplan, “The Age of the Symbol – A Philosophy of Library Education,” The Library Quarterly, October 1964 34:4, pp. 295, 303.

[4] Jon and Greg have published the entire content of the acknowledgments on our website Thanks in particular to Greg’s chief researcher Pamela Paresky, the entire staff of FIRE, and to the board. Thanks also to all the people who volunteered to help us refine arguments (and discover new ones and new perspectives) on the many polarizing issues we discuss in the book. We are proud to announce that the book is now in its second week on the New York Times’ hardcover nonfiction best sellers list. We hope you will consider reading it and tell us what you think!

Greg Lukianoff is the president and CEO of the Foundation for Individual Rights in Education and the Co-Author of ​The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting up a Generation for Failure. He is a member of The Media Institute’s First Amendment Advisory Council.

Adam Goldstein is a staff attorney at FIRE. For 13 years, he was an attorney with the Student Press Law Center, where he helped high school and college journalists with media law problems.