REPORT: Nearly half of public colleges restrict student speech

An annual report on speech policies at major colleges and universities finds that while some progress was made toward lifting speech restrictions this year, much work remains to be done.

In the 2016 edition of “Spotlight on Speech Codes,” published annually since 2009, the Foundation for Individual Rights in Education (FIRE) gives a “red light” label—signifying at least one substantial speech restriction—to 49.3 percent of the 440 schools it reviewed, representing a slight improvement over last year, when 55 percent of schools received the failing grade.

[RELATED: FIRE releases list of schools with restrictive speech policies]

In order to earn a red light rating, a school must have “at least one policy that both clearly and substantially restricts freedom of speech, or that bars public access to its speech-related policies by requiring a university login and password for access.” FIRE further specifies that a red light policy must be both “clear,” meaning its consequences do not depend on how it is applied or enforced, as well as “broadly applicable to campus expression.”

At the other end of the spectrum is the “green light” rating, which is awarded to schools whose policies are freely accessible and do not pose a significant threat to freedom of speech.

This year, FIRE gave 22 schools (5 percent of those surveyed) a green light, surpassing last year’s tally, when 18 schools (4.1 percent) received the honor. By way of comparison, only two percent received a green light rating in FIRE’s first speech code report in 2009.

In fact, according to the Executive Summary of the report, this year not only set a record for the highest number of green light ratings, but also marked the first time since FIRE began compiling the data that fewer than 50 percent of schools have received red light ratings.

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The median designation, naturally, is a “yellow light” rating, which FIRE applies to policies that are restrictive of free speech and typically unconstitutional, but only apply to narrow categories of speech or are relatively limited in scope.

FIRE gave out more yellow lights this year than last—194 (44.1 percent) compared to 171 (39.1 percent)—but takes comfort in the knowledge that the difference was supplied almost exclusively by the loosening of speech restrictions at schools that had previously received a red light.

Most of the gains, however, have been among public schools, which can be legally compelled to adhere to their First Amendment obligations. At private institutions, which have no such responsibility, just two of the 104 schools that FIRE reviewed qualified for a green light rating, while over 60 percent received a red light.

Even among public colleges and universities, though, FIRE asserts that federal intervention into their handling of sexual harassment claims has retarded progress toward liberating student speech on campuses, noting that over the past year, they were forced to downgrade 10 universities from a yellow light rating to a red light “for adopting overly restrictive definitions of sexual harassment.”

In order to continue making progress going forward, FIRE claims that “public pressure is still perhaps the most powerful weapon against campus censorship, so it is critical that students and faculty understand their rights—and are willing to stand up for them when they are threatened.”

When ordinary individuals are willing to assert their freedoms, the report explains, efforts to overturn restrictive speech policies through legal and legislative action become much more effective. Since 2014, FIRE has coordinated ten First Amendment lawsuits (winning all seven of those that have been decided so far), and several states have either enacted or introduced legislation prohibiting restrictive policies such as free speech zones and safe spaces.

[RELATED: Washington state rep drafts bill to do away with ‘safe spaces’]

“The suppression of free speech at American universities is a national scandal. But supporters of liberty should take heart,” FIRE consoles readers in the conclusion of the report. “While many colleges and universities might seem at times to believe that they exist in a vacuum, the truth is that neither our nation’s courts nor its citizens look favorably upon speech codes or other restrictions on basic freedoms.”

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