Free Speech on Campus: A Battle of Narratives

I am giving this talk out of a little bit of frustration with the way people talk about free speech issues on campus. I’m going to elaborate on what I refer to as the “Simple Theories” about what’s going on on college campuses; taken together, the overall point is that what goes on is more complex than any simple theory.

Simple Theory Number One: PC Run Amok

The threats to free speech on campus arise from “political correctness run amok.”

I would like to stress that I do not love the term political correctness. I feel like I have to use it because we do not have other terminology for the phenomenon it describes. To be clear, there is some truth to each of these “simple” theories, and we at the Foundation for Individual Rights in Education have certainly seen many cases that fit the cliché of “PC run amok.” Let’s look at a case, one of the biggest cases of the past year, and see how well this narrative fits.

At Northern Michigan University, if a student went to the counseling services and reported being raped or experiencing depression or anxiety, they would later receive a letter from the dean of students’ office telling the student not to talk to friends about any “suicidal or self-destructive thoughts.” If they did, they would be disciplined. One version of the letter widely circulated online begins compassionately enough, reassuring students that “folks at NMU care about you and want to make sure you are okay.” But it continues ominously: “Engaging in any discussion of suicidal or self-destructive thoughts or actions with other students interferes with, or can hinder, their pursuit of education and success in the NMU community. If you involve other students in your suicidal or self-destructive thoughts or actions, you will face disciplinary action.” This letter was sometimes also sent to students who did not mention anything about self-harm or suicide. One student, who sought counseling after a sexual assault and reported no self-destructive or suicidal thoughts, received a version of the letter that concluded, “My hope is that, knowing exactly what could result in discipline, you can avoid putting yourself in that position.”

Administrators at NMU admitted that they sent the letter to between 25 and 30 students each semester. To me, this is absolutely insane. Aside from being a clear example of prior restraint on student speech, one of the most serious infringements of First Amendment rights, many experts agree that peer support is an important part of suicide prevention. Anyone who knows anything about mental health knows that telling anyone that they are a burden to their friends is bad enough, much less saying that to someone who is depressed or suicidal. To go further and instruct them to stop talking to friends — to essentially force depressed and suicidal students to isolate themselves — is about the worst thing that can be done. One former NMU student who received the letter recounted that it was “degrading and debilitating beyond belief,” and reported that her “collegiate career was ruined.”

So why did Northern Michigan University require this? Whose narrative does this fit? Is the case against this practice a liberal case? Is it a conservative case? How can we make sense of it? It certainly does not seem to fit Simple Theory Number One. So the theory of “It’s just political correctness” is overly simple and not entirely explanatory. But I have a second Simple Theory, one I expanded upon in my book Unlearning Liberty in 2012:

Simple Theory Number Two: Admins Run Amok

The threats to free speech on campus arise from the expansion of the administrative class at universities.

We are witnessing the era of administrative overregulation; university administrations are now regulating aspects of students’ lives that were once considered off-limits.

Consider the University of Hawaii at Hilo, where, in 2014, administrators told students that they could not hand out copies of the Constitution or protest the National Security Agency outside a tiny free speech swamp (really a puddle) on campus. They had to ask for permission to use the area two weeks in advance.

Consider, too, the 2015 case at California State Polytechnic University–Pomona: a student was protesting cruelty to animals and was told that he was not only required to remain inside a tiny free speech zone but also had to ask in advance for permission to use it. The school even required him to wear a badge signed by an administrator that explained that he had been granted permission by the university in order to engage in his free speech activities.

All three of the schools I have mentioned are publicly funded state schools. The First Amendment applies to each of them. Their restrictions on speech are unconstitutional, yet they and others continue to unlawfully restrict free speech. So what narrative does this fit? Is it political correctness? Or do cases like these at California Polytechnic and Northern Michigan University actually fit my simple theory of administrative overreach? I believe they do. But I also acknowledge that even my theory of administrative intrusion is overly simple and does not entirely explain the excessive regulation of speech that is happening on campuses.

The Title IX Twist

You may have heard about the Laura Kipnis case, that of a feminist professor who wrote an essay for the Chronicle of Higher Education arguing that certain dramatic interpretations of Title IX are disempowering and infantilizing to women. In the essay, Kipnis also mentioned some details (which were, at the time, already public) about Title IX investigations and lawsuits at her school, Northwestern University.

The next thing you know, Kipnis was being investigated under Title IX for writing an article criticizing the overreach of Title IX. In the bizarre and Kafkaesque institutional investigation that ensued, Kipnis had to repeatedly push the school to provide her with information about who her accusers were, what the charges against her were, and what those charges stemmed from. What ultimately resolved her case was that she wrote another article for the Chronicle of Higher Education and blew the whistle on the university’s lengthy, unfair, and unfounded investigation. Within days of the article’s publication, Northwestern dropped the case.

The Kipnis case inserts a twist into our narrative, one that cannot be explained simply as administrators overadministering. It is not that administrators at Northwestern and other universities are acting from out of nowhere or imagining phantoms. There are reasons they are investigating professors like Kipnis and banning the handing out of the Constitution.

Administrators across the academy are being incentivized to overreact. That is partially because of the Department of Education and the aggressive and expansive enforcement of Title IX. In 2013 the Department of Education, of its own accord and relying on no precedent, wrote a new definition of harassment, a “blueprint” it said every college should follow. This definition is unconstitutionally vague and broad.

This “blueprint” defines sexual harassment as “any unwelcome conduct of a sexual nature.” Gone is the standard that the conduct be “objectively” offensive and gone is the requirement that conduct be “severe” or “pervasive.” Now any “unwelcome” conduct of a sexual nature is to be considered “harassment.”

If I could get the “blueprint” definition of harassment in front of a judge, I can all but guarantee it would be laughed out of court because it is so inconsistent with existing First Amendment law. In fact, FIRE is sponsoring ongoing First Amendment litigation against Louisiana State University, on behalf of a tenured female associate professor who was fired for alleged “sexual harassment.” What did she say? The university punished her for the occasional use of profanity and sex-related language in teaching her adult students about the interactions they could expect in the real world. When her firing sparked outrage and criticism in the national media, LSU claimed the Department of Education’s “blueprint” definition of sexual harassment required her termination. In a statement to the press, LSU claimed to be just following orders, arguing that it was simply following “the U.S. Department of Education’s Office of Civil Rights’ [sic] advisements.”

Administrators are being nudged into overreacting partly because of an overbroad definition of Title IX. But there is another reason that administrators are intrusively overregulating, and it emerges from a more recent phenomenon. This brings us to my third Simple Theory.

Simple Theory Number Three: Students Run Amok

The threats to free speech on campus arise in response to the increase in student demands.

I have been distressed over the past couple of years by the fact that, instead of asking for freedom of speech, students are in some cases asking for freedom from speech (as I titled a booklet I wrote). For most of my career, the single constituency on campus that most reliably demanded freedom of speech had been students, particularly poor and minority students, nontraditional students, and people who felt like they did not fit in. In many situations, they understood free speech better than their professors, and they certainly understood free speech better than administrators. That started to change a couple of years ago.

For example, by 2014 the University of California system had come up with a list of microaggressions — small, usually unconscious slights that a person might commit that have either racist or sexist undertones, or could be otherwise construed as in some way demeaning to marginalized people — and trained deans and department chairs to avoid saying them. As an aside, I am fascinated by the topic of microaggressions, and I think we should absolutely be studying it, but we should not create corresponding regulations or policies. Once administrators have the power to define what constitutes a microaggression, the administrators’ definitions pretty quickly look like a list of things you should not say.

The UC system’s list included statements like “America is a melting pot”; “I believe the most qualified person should get the job”; and “America is a land of opportunity.” We also find ridiculous circumstances like at the University of New Hampshire, which determined that “problematic” language, “demean[s] people based on personal characteristics,” and as a result, UNH administrators created a list of “bias free” terms the university preferred to more common, problematic terms. Words like Caucasian, Arab, and American were listed as “problematic,” and the terms white people and European-American individuals were preferred to Caucasian; Western Asian people and Northern African people were preferred to Arab; and U.S. citizen and resident of the U.S. were preferred to American.

Of course, Fox News fixated on the word American and thought calling it “problematic” was totally offensive. I grew up with a lot of friends from Central and South America, so I am very familiar with the argument that everyone from the Americas is an American. But the “problematic” word that I thought was most horrifying was Arab. I have a lot of Lebanese friends, because I used to work in a Lebanese restaurant, and they proudly identify as Arab. Now they are being told by the University of New Hampshire that being called “Arab” is “demeaning.” I wonder if UNH actually consulted anyone who was actually Arab when they created that list. It reminds me of an episode of The Office called “Diversity Day,” when Michael Scott asks one of his beloved employees, Oscar, how he self-identifies. Oscar replies, “Well, I’m Mexican,” and Michael’s clueless response is “Is there a term besides Mexican that you prefer? Something less offensive?” Which is, of course, the most offensive thing he could have said.

The Chalk Trauma

Let’s look at a different kind of example. If you have heard of any recent case involving student oversensitivity, you might be familiar with what got dubbed “The Chalkening.” At Emory University, someone wrote the words “trump 2016” in chalk on the sidewalk, and students said they felt like they were under assault and were traumatized by it. One student summed up students’ reaction by saying, “I think it was an act of violence.” Protesting students who wanted to speak with administrators stood outside the administration building chanting, “You are not listening! Come speak to us, we are in pain!”

What concerned me most was the university president saying, in response, that they were going to find out who committed the chalking by looking at footage from a closed-circuit camera, and that if any students were involved, they would go through the conduct violation process. That only lasted until he remembered that students are allowed to chalk at Emory. If you are allowed to chalk “hillary 2016,” you have to be allowed to chalk for the other guy too.

The Popularity Contest

Why is this happening? In 2010, the Association of American Colleges and Universities asked members of the campus community whether it was safe to hold unpopular positions on campus. I do not love their study, the prompt is not precise or clear, but even back in 2010, when I think it was comparatively safer to disagree on college campuses, only 40 percent of incoming freshmen said that they strongly agreed that it was safe to hold unpopular points of view, and, by the time they left, only 30 percent of seniors thought that. The more exposure students had to the academy, the less likely they were to think it was safe to disagree. The most pessimistic group? Faculty. Only 16.7 percent of faculty members strongly agreed with the statement that it was safe to hold unpopular points of view on campus. If you did that survey today, I think the percentage of students and faculty who think it is safe to hold unpopular views would be a lot lower.

I understand the concerns that students have about hurtful or hateful speech, but I do not agree with them. I’m an old-fashioned First Amendment advocate. I find it really concerning and poorly thought out that so many students (43 percent, in fact) believe that schools should disinvite controversial speakers. These students do not seem to understand that many of their own heroes or idols might be considered “offensive” to other students or administrators and could therefore be disinvited under this logic.

There is a clear disconnect between millennials and the rest of America when it comes to attitudes about censoring offensive statements about minorities, for example. It has been shown in all sorts of studies that, even though everybody in America is trained to say “I believe in freedom of speech,” when you actually look a little deeper into millennial attitudes, there is an idea that speech codes are good and that you can have positive censorship. That concerns me a lot.

My Grand Theory of Censorship on Campus

Universities have maintained the modern incarnation of speech codes since the late ’80s. At FIRE, we define a “speech code” as any university regulation or policy that prohibits expression that would be protected by the First Amendment in society at large. We rate schools as red, yellow, or green. If FIRE finds that a university’s policies do not seriously threaten campus expression, that college or university receives a “green light” rating. A green light rating does not necessarily indicate that a school actively supports free expression in practice; it simply means that the school’s written policies do not pose a serious threat to free speech. A “yellow light” institution maintains policies that could be interpreted to suppress protected speech or policies that, while clearly restricting freedom of speech, restrict only narrow categories of speech. A “red light” institution is one that has at least one policy that both clearly and substantially restricts freedom of speech or that bars public access to its speech-related policies. Simply, red means the school maintains policies that are laughably unconstitutional for public institutions or that clearly violate the freedom of speech they claim to offer at private ones. The classic example of a red-light speech code is a ban on “inappropriately directed laughter.” Seriously. Such a code appeared at two different colleges: the University of Connecticut and Drexel University.

There are many hidden reasons why a lot of these crazier situations happen, and that is the unfortunate intersection between America’s litigiousness — I say that as a lawyer; we sue each other far too much — and the Department of Education guidelines and standards that are in many ways not particularly clear and in other ways extremely troubling. The Department of Education has the power to remove all funding from universities that do not comply with its mandates. That is a death sentence for a lot of universities, so they overreach in order to avoid running afoul of the Department of Education’s whims. It also seems clear that ideology and groupthink play a role, and it would be irresponsible of me not to mention that. However, the overbureaucratization of universities is a prime factor in the situation on campuses today. There has been a massive increase in the administrative class at universities, and we are paying through the nose for it. The cost for the 100 most expensive schools in the country is between $55,000 and $70,000 a year. To most people, that sounds crazy. But you might assume, at least, that the outrageous cost is for world-class professors. Increasingly, though, that money is going toward administrative costs.

How we end up in the kinds of situations we see on college campuses today is much more complex and multifaceted than the caricatures some people create. What we do to prevent them has to start with a nuanced understanding of all the major factors at play that pose a threat to free speech on campus.

Greg Lukianoff is an attorney, New York Times best-selling author, and the President and CEO of the Foundation for Individual Rights in Education (FIRE)