Readers of Critical Mass will already be familiar with the concept of the "free speech zone" that many colleges and universities use to restrict student expression on campus. At public schools, where the whole campus is required by law to be a free speech zone, these restrictive zones are unconstitutional--and yet many, many schools have them, and some will even defend their right to maintain them in court. Texas Tech's festive yet absurdly small "free speech gazebo" (pictured here) is currently the subject of a lawsuit: last summer, the Foundation for Individual Rights in Education paired with the Alliance Defense Fund to sue the school for restricting expression in ways that are legally and morally incompatible with its mission as a public institution.

Yesterday's Detroit News featured an op-ed by Greg Lukianoff, director of legal and public advocacy at FIRE. Lukianoff opens with an account of the Texas Tech case (and also supplies the alluring photograph of the free speech gazebo linked above). He moves from that case to a broader consideration of how schools across the country are using designated zones and harassment policies to limit when and where faculty and students can speak and to place clear boundaries on what they can say. He names schools that have zones (Western Illinois University, West Virginia University, University of Nebraska at Omaha, University of Houston and University of Alabama) and he names schools that have within the past year arrested students for exercising their free speech rights outside their school's zones (Florida State, Citrus College).

Lukianoff also names schools that have punished students and faculty for putatively offensive or insensitive expression. At the University of California San Diego, Stetson University, and Tufts University, students have been brought up on charges for committing the crime of satire. Over the past year, at Harvard Business School, Shaw University, Hampton University and SUNY Suffolk, students have been punished for criticizing the school's administration. He notes how, at Central Michigan University, students were forced to take down signs supporting the war on terrorism because some found the signs offensive. For every example Lukianoff gives, he leaves unnamed, for sheer lack of space, dozens of similar ones.

But despite space restrictions, Lukianoff does find room to mention the case of John Bonnell, the Macomb Community College English professor who has been repeatedly suspended for his use of profanity in the classroom. "Students in Michigan may know of Professor John Bonnell, who has been repeatedly disciplined for using graphic language in his literature class at Macomb County Community College in Warren," he writes, mentioning Bonnell's situation, which has been made possible by a speech code that is arguably unconstitutional, just before he mentions how two other Michigan universities, Central Michigan and UM itself, both had unconstitutional speech codes struck down by the courts during the late 1980s and early 1990s. Lukianoff does not make explicit the connection between MCC's speech code and the one at UM that banned expression that "stigmatizes or victimizes" other students on the basis of "ancestry," "creed" and other categories. He also does not connect the dots between MCC's code and the one at CMU that forbade "demeaning or slurring individuals." But the connections are there to be made by observant readers.

Macomb Community College has been prosecuting John Bonnell for sexually harassing classroom speech for some time now. Last spring, the school expanded a policy that was already arguably overbroad. Under the guise of its newly expanded unlawful harassment policy, Macomb Community College bans "unwelcome verbal or physical acts that are based on sex, have no professionally appropriate relationship to the subject matter of a course, and are so severe and pervasive that they objectively either (i) have the effect of unreasonably interfering with an individual's work or academic performance, or (ii) create an intimidating, hostile or offensive learning or working environment" and "verbal or physical acts based on race, color, national origin, religion, disability, age, marital status, pregnancy, height or weight that have no professionally appropriate relationship to the subject matter of a course and are so severe and pervasive that they objectively either (i) unreasonably interfere with an individual's work or academic performance, or (ii) create an intimidating, hostile or offensive learning or working environment." In other words, MCC bans just about everything anyone might find offensive. The policy states that usually there must be a pattern of behavior to prove harassment--but that sometimes one incident can be enough to warrant disciplinary action.

The policy addresses classroom speech specifically, stating that "regular use of profane, vulgar, or obscene language in the classroom that is not germane to course content (and thus educational purpose) as measured by professional standards is prohibited by College policy and may lead to imposition of discipline." Translation: we understand that classroom discussion must be able to move freely from subject to subject and that words that might be inappropriate elsewhere may become appropriate within the context of intellectual discussion; however, we reserve the right to punish anyone who, in our opinion, according to our vaguely worded policy, does not teach in a manner that we personally condone.

The full policy is available here. It has elaborate instructions for how complaints of harassment can be made, and for how the school shall investigate such complaints--but makes no provision for the accused to confront his accuser. It gives examples of the kinds of behavior that will be considered harassment--but each one is taken from a workplace harassment lawsuit, with no acknowledgement of the fact that a college is not, for faculty and students, the same thing as a corporate workplace, that the law for the one is not automatically and easily transferrable to the other, or that the mission of education requires, as a matter of principle, tolerance of potentially offensive expression.

Unconstitutional? It would be nice to see the courts make this call.