By Marsha Sutton
Freedom of speech for students has been a quagmire for educators and constitutional scholars for decades. As students have pushed boundaries, they have challenged adults to preserve students’ basic democratic freedoms while ensuring the right to privacy, the right not to be bullied, and the right to limit speech that can incite hateful or violent action.
Students in a school environment are not guaranteed the same expansive right to freedom of speech or expression granted to adults in the United States, but pinpointing exactly where to draw the line has become a recurrent dilemma.
High school and college campuses repeatedly confront the problem, which has presented itself in an infinite variety of ways. Anti-gay slogans on a T-shirt, semi-nude photos in a literary magazine, and criticism of administrators in student newspaper editorials are among some of the legal challenges local high school educators have dealt with in past years.
In Florida, a former high school student, Katherine Evans, won a two-year legal battle when a settlement was reached that erased a suspension from her record for creating a Facebook page that described one of her teachers as “the worst teacher I’ve ever met.”
Pembroke Pines Charter High School principal, Peter Bayer, said the comment, made in 2007, was “cyber-bullying” and “harassment” of a staff member, and he suspended the honor student for three days. Evans will also receive a payment of $15,000 for legal fees and $1 for “damages.”
Given what students are currently saying about each other on Facebook and the horrific Formspring, this comment seems tame. Yet the principal felt Evans crossed the line and punished her all out of proportion.
Schools are often quick, too quick, to stifle student speech that may be insulting but certainly poses no threat to personal safety, incites riots or is hateful. A clear distinction should be made between expressing an opinion that someone may not like versus comments that can cause personal harm.
Complicating the issue further is how to distinguish between what high school students and college students may be allowed to express, who determines the conditions under which free expression should be suppressed, and what justification can be used to control speech when the “perpetrators” in college are legal adults.
estrictive rights on college campuses
A new report shows that the majority of college campuses are far too restrictive of students’ rights to freedom of expression. In its most recent annual report, the Foundation for Individual Rights in
Education found that the majority of major American colleges and universities fail to meet acceptable standards for freedom of speech for their student bodies.
FIRE, a national free speech advocacy organization, annually reports free-speech trends in major four-year colleges in the U.S. In this year’s report, titled “Spotlight on Speech
Codes 2011: The State of Free Speech on Our Nation’s Campuses,” 390 universities were reviewed.
Of the 104 private colleges, 65 percent received a red light, 24 percent a yellow light, 3 percent a green light and 8 percent not rated. Of the 286 public colleges, 67 percent received a red light, 29 percent a yellow light, 3 percent a green light and 1 percent were not rated.
That means that about 260 colleges out of the combined total of 390 were found to be far too restrictive of free speech, while only 12 of the 390 were deemed acceptable.
One example FIRE cited of restrictive policies was the following: “The University of Massachusetts Amherst has a policy about ‘controversial rallies’ requiring that if a rally is deemed controversial, it may only take place between 12 and 1 p.m. and must be held on the student union steps, and the sponsoring student group must designate at least six of its own members to act as a security team.”
FIRE defines the rating system as follows:
means that the institution has at least one policy “both clearly and substantially restricting freedom of speech or that bars public access to its speech-related policies by requiring a university log-in and password for access.” A “clear” restriction is one that “unambiguously infringes on protected expression.”
FIRE further defines the log-in and password problem as follows: “When a university restricts access to its speech-related policies by requiring a log-in and password, it denies prospective students and their parents the ability to weigh this crucial information. At FIRE, we consider this action by a university to be deceptive and serious enough that it alone warrants a ‘red-light’ rating.”
school “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.” As an example, a policy banning posters promoting alcohol consumption clearly restricts speech but is limited in scope.
A green light
means that FIRE finds that a university’s policies do not seriously threaten campus expression. But “a green light does not indicate that a school actively supports free expression; it simply means that the school’s written policies do not pose a serious threat to free speech.”
Since the number is so small, it’s easy to list the green-light colleges: Black Hills State University, Carnegie Mellon, Cleveland State, Dartmouth, Shippensburg University of Pennsylvania, College of William and Mary, University of Nebraska at Lincoln, University of Pennsylvania, University of South Dakota, University of Tennessee at Knoxville, University of Utah and University of Virginia.
Schools that are “not rated” are those that hold “a certain set of values above a commitment to freedom of speech.” Universities not rated by FIRE are: Bard College, Baylor, Brigham Young, Pepperdine, Saint Louis University, United States Military Academy, United States Naval Academy, Vassar College, Worcester Polytechnic Institute and Yeshiva University.
Locally, the following colleges have been given the red-light designation: Cal State San Marcos, Cal State Long Beach, California Institute of Technology, Claremont McKenna, San Diego State, Stanford, and UC San Diego, Riverside, Davis, Irvine and Santa Cruz. Nearly all the Ivy League schools and most of the other top-tier private universities nationally received a red-light rating. UCLA, UC Berkeley and UC Santa Barbara received yellow-light ratings.
The mission if FIRE, according to the Web site, is to “defend and sustain individual
rights at America’s colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty and sanctity of conscience – the essential qualities of individual liberty and dignity.”
The schools that FIRE reviewed were those included in the top 100 national universities and the top 50 best liberal arts colleges as reported in the 2009 issue of U. S. News and World Report. Also included were an additional 237 major public universities which, according to the report, are legally bound to protect the right to free speech for students.
As bleak as the results seem to indicate, FIRE revealed that this was the third year in a row that the percentage of red-light public schools decreased, dropping from 79 percent three years ago to 67 percent today.
“Since public universities are legally bound to protect their students’ First Amendment rights, any percentage above zero is unacceptable, so much work remains to be done,” FIRE reports. “However, we are encouraged by this ongoing positive trend.”
Private universities, which are not bound by the First Amendment but promise free speech to students and faculty, also improved their ratings, dropping red-light percentages from 70 percent to 65 percent this year. Progress is noted, but FIRE states that speech codes still “impermissibly violate those promises.”
Because the First Amendment regulates only government conduct, students at private institutions have no legal guarantee of protection. According to FIRE’s study, “This does not mean, however, that students and faculty members at private schools are not entitled to free expression. In fact, most private universities explicitly promise freedom of speech and academic freedom, presumably to lure the most talented students and faculty, since most people would not want to study or teach where they could not speak and write freely.”
As an example, Syracuse University’s student handbook states that it is “committed to the principle that freedom of expression is essential to the search for truth, and consequently welcomes and encourages the expression of different and varied opinions, and of dissent.” Yet, despite this, Syracuse, like many other red-light universities, prohibits speech that would be protected elsewhere under the First Amendment, FIRE claims.
Determining what constitutes permissible speech is subjective. Most speech is protected except for specific types of speech that the Supreme Court has ruled an exception under the First Amendment: “speech that incites reasonable people to immediate violence, so-called ‘fighting words’ (face-to-face confrontations that lead to physical altercations), harassment, true threats and intimidation, obscenity, and libel.”
One of the more troublesome restraints are the so-called “free-speech zones” – areas on campus, often in remote locations, that are designated for rallies or demonstrations and often require prior permits or advance approval from the university. “Such ‘prior restraints’ are generally inconsistent with the First Amendment,” according to FIRE.
The debate is loaded with constitutional quandaries. When a controversial speaker at a college event that’s attended by hundreds or even thousands of students is shouted down by a dozen activists, is it permissible for 12 individuals to infringe on the rights of the majority who have a right to hear what the speaker has to say? If that speaker spews hateful words against minority students, is it right for the campus to allow the speech?
If the Westboro Baptist Church decides to picket the funeral of a fallen hero, do we as a society have a right to suppress their speech, no matter how despicable it may be?
Do students have a right to belittle and attack their classmates on social networking sites like Formspring?
Because it can lead to all sorts of repressive ends, censorship is not the American way. Colleges in particular should be safe havens for the airing of new ways of thinking and creative expressions of ideas. Yet there are limits on what can be said in public. Our powers of imaginative speech that push the envelope have outpaced our ability to sort out what crosses the line into the realm of the impermissible.
As technological advancements and societal incivility encourage both exceptional and depraved self-expression, we can expect more and more First Amendment challenges in court. Let us hope our judges have the wisdom and the intelligence to preserve America’s basic liberties without trespassing on individual rights. It’s a balancing act of enormous significance.
Marsha Sutton can be reached at: SuttComm@san.rr.com.