Campus Speech Codes
Dating back to the 1980s, hundreds
of public colleges and universities have adopted speech codes
that aim to ensure a civil, nondiscriminatory environment
on campus. The goal is noble. The problem with such codes,
however, is their tendency to inhibit protected expression.
Campus speech codes typically are
not labeled "speech codes." Rather, they often reside inside
larger "anti-discrimination" or "anti-harassment" or "student
code of conduct" policies. In many cases colleges with speech-limiting
rules have not found occasion to enforce them. But where the
rules have indeed chilled or punished expression, legal action
against the rules has most often been successful.
This issue presents a classic conflict
between the need to make colleges inviting, supportive places
for learning and alternately the long, higher-education tradition
of academic freedom and unsanitized debate. From a legal perspective,
two general rules are important to note: First, actual conduct
that amounts to "harassment" is not protected by the Constitution,
but merely "offensive" expression by itself is not harassment
and usually is protected. And second, courts may draw a distinction
between speech inside the classroom and speech that occurs
outside class.
Inside the classroom, courts are more
likely to balance the value of free expression against the
competing principle that captive audiences should not have
to endure a hostile environment. For example, in the 2001
case of Bonnell v. Lorenzo a professor was suspended for his
frequent use of vulgar, degrading language in the classroom.
The federal appeals court, in a lengthy analysis, noted that
the professor's language was not germane to course content
and ultimately sided with the college.
But typical of the campus-wide speech-code
cases is UWM Post v. Board of Regents. In that 1991 case the
Wisconsin state university system had sought to combat incidents
of discriminatory harassment with a rule prohibiting students
from making comments intended to "demean the race, sex, religion,
color, creed, disability, sexual orientation, national origin,
ancestry or age" of an individual. The federal district court
held that the policy was not limited to the long-recognized
"fighting words" exception to free speech (circumstances that
would prompt an immediate breach of the peace). Therefore,
the university's attempted control on speech was overly broad
and unconstitutional.
The court noted that the university's
goal of increasing student diversity was not a compelling
justification to stifle individuals' expression, and the court
even suggested that long-term the rule could hurt as much
as help: "By establishing content-based restrictions on speech,
the rule limits the diversity of ideas among students and
thereby prevents the robust exchange of ideas which intellectually
diverse campuses provide."
Nevertheless, a "political correctness"
perspective exists on many campuses, and attempts to decree
diversity-friendly expression are likely to persist in some
form. Look for future court rulings to further clarify the
line between legitimate policies against threatening conduct
and impermissible restraints on expression.
