Published September 02, 2003
WASHINGTON – Campus speech codes and other regulations governing student behavior should not attempt to infringe on the free speech rights of students, the Department of Education warned colleges and universities.
In a July 28 letter to college and university officials, Gerald A. Reynolds (search), assistant secretary at the Office for Civil Rights (search), wrote: “Schools, in regulating the conduct of students and faculty to prevent or redress discrimination, must formulate, interpret and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.”
Many universities have used codes of conduct to outline acceptable student behavior, not only assault, theft and vandalism, but also language and provocative forms of expression.
The University of Massachusetts at Amherst, for example, prohibits "prolonged staring or leering." The University of North Carolina at Pembroke bans language that can be considered loud or offensive.
But opponents of the codes say many of the schools use the rules to limit free speech.
“The dangers are that, under the guise of fostering so-called civility, students will end up prosecuted by campus tribunals for saying things that are deemed to be upsetting or disturbing to other students, and you cannot have a vibrant campus discussion with such restrictions,” Harvey Silverglate, co-director of the Foundation for Individual Rights in Education (search), a Philadelphia-based group that has challenged such codes, told Foxnews.com.
FIRE has initiated court cases against a number of institutions whose codes they say are unconstitutional. FIRE filed one such suit against Shippensburg University after two students there claimed their rights to free speech had been violated.
One plaintiff in the case, Walter A. Bair, testified that after Sept. 11, students were forced to remove messages and posters on their dorm room doors that expressed hostility toward Usama bin Laden and support for U.S. troops in Afghanistan.
Students were told to remove the flyers, which according to Bair's affidavit, the university's resident director claimed were "offensive to other students and violated the Code of Conduct."
Shippensburg University spokesman Peter M. Gigliotti insisted that the university values free speech, has never infringed on free speech and its conduct code demonstrates that value.
"We do not have a speech code ... Free speech is an integral part of any academic institution," said Gigliotti, who argued that FIRE took words out of context in their lawsuit.
While offensive language may seem far from the ideal aspired to at colleges and universities, one expert said the danger of prohibiting speech lies in the uneven applications of conduct codes.
“They tend to be applied to those who say things against what is status quo on campus," said Donald Downs, a University of Wisconsin professor and author of the forthcoming book Freedom and the University: The New Politics of Free Speech and Civil Liberty on Campus.
"They tend to be [applied to those who are] more libertarian or conservative. Here at Wisconsin every single case fit that description. It’s a criminalization of political differences,” Downs told Foxnews.com.
Students disagree over the value of having regulations governing speech.
“I don’t think there’s anything wrong with it," said Raven Baker, a 21-year-old University of Maryland senior. "I have been in classes where people said things that were really inappropriate and even though that’s their opinion, it never needed to be said. And having these sort of codes would prevent that.”
“I think at this age people should just be mature enough to know what they should say and what they should not say, ” said 18-year-old Maryland sophomore Ryhan Shahriar.
Some universities have pursued “free speech zones” that school officials say allow students to protest without disrupting learning. But critics claim that establishing a zone effectively bans free speech everywhere else.
Texas Tech, with some 28,000 students, previously had a single free speech zone located in a 20-foot wide gazebo that holds 40 people. The school has since expanded the number of free speech zones, but it is still fighting a lawsuit by FIRE on behalf of a student there.
Until April, the University of Maryland also had designated “free speech zones.” After a challenge by the American Civil Liberties Union (search), it now allows students, staff and faculty to distribute leaflets at any outdoor spot on campus. Demonstrations of 10 or fewer members can also be held anywhere without advance registration.
The Department of Education letter represents a significant shift in policy. Whereas the Office of Civil Rights had been silent about schools that justified its codes as part of OCR's anti-harassment regulations, the Bush administration has now laid down a gauntlet.
“OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses,” Reynolds wrote in his letter.
Silverglate is encouraged by OCR’s move, believing that it will now be more difficult for colleges and universities to practice censorship, but he does not consider the battle won yet.
“It is now generally understood that censorship does not have a role in higher ed. With the OCR letter, the federal government has made it clear that these codes are unconstitutional," Silverglate said.
"We haven’t gotten rid of [speech codes] but we have managed to force the censors back into the dark corners."