Responding to my discussion with Tim Burke about speech codes at Swarthmore, reader Jason Kakazu writes,

I've been reading your blog with interest for the past few days and wanted to comment on the topic currently being discussed, Swarthmore's speech codes. Generally speaking I agree with your stance. Swarthmore's policies are too vague regarding the precedence and importance of its various speech policies and their relationship to each other. While Timothy Burke interprets the general harassment policy as taking precedence over the other policies this is by no means explicit. As indicated by the continuing discussion on this matter there are a variety of plausible interpretations that can be made regarding what the aggregate affect of the policies are. This ambiguity leaves Swarthmore's speech codes vulnerable to abuse by misguided but well meaning administrators.

However, having sided with you in principle I believe Timothy does have a point when he notes that practicality must be considered. Liability is an important issue that an academic institution would be foolish to ignore. I humbly suggest then, under the assumption that the purpose of debate is to further constructive action and thought, that three additional questions which should be asked and answered are:

1. How does a university adequately protect itself
from on campus harassment (of whatever nature)
liability that does not impose on the first amendment?

2. What principles or examples should a university
follow when creating it's campus harassment policy if its intent is to unambiguously denote the precedence and importance of its various policies in relation to each other as well as how they are enacted in practice.

3. What specific actions can Timothy Burke (or other faculty and students) reasonably take with regard to Swarthmore's speech codes in order to correct the current ambiguity?

I have enjoyed reading your blog. Keep up the good work.

Many administrators claim that federal law actually requires them to adopt harassment codes that restrict free speech. Specifically, they usually appeal to Title VII of the Civil Rights Act (which bans workplace discrimination) and Title IX of the Civil Rights Act (which bans sex-based discrimination in higher education). While these policies do have limited applicability on campuses (in limiting a university's actions as an employer, for example), they in no way require universities to ban offensive speech, let alone constitutionally protected offensive speech. Even if there were laws requiring such bans, those laws themselves could not withstand scrutiny in the courts any more than a law mandating religious belief. No statute can trump the First Amendment. Read an official communication from the Department of Education's Office for Civil Rights for further guidance here.

True harassment or discrimination, of course, cannot be defended by an appeal to free speech and indeed should be prohibited by universities. No one has a right to engage in unwelcome, severe, and persistent behaviors that unlawfully interfere with another person's rights, and no one has a right to discriminate invidiously and unlawfully. Many university administrators, however, have gone far beyond the requirements of the law and the constraints of common sense. Far from taking true harassment seriously, they make a mockery of it.

Speechcodes.org is worth careful perusal. Among other things, the site publishes a list of court decisions that pertain to questions of campus speech, some recommendations about what you can do to protect individual rights on campus, and a searchable database that lets you examine how nearly three hundred colleges and universities alternately respect and betray the First Amendment rights of their students. FIRE's forthcoming Guide to Free Speech on Campus also promises to be an excellent primer on the history and theory of individual rights in academe.

UPDATE: Prue Schran writes,

Thanks for making the distinctions about liability - I think it's very important.

In my humble opinion, the argument that speech restrictions are required to protect the institution from lawsuits is weak at best. Even if a student or employee of the college engages in harassing or discriminatory speech, that does not automatically make the college responsible or liable.

On a related note, we've also worked ourselves into a tricky corner - somehow on campuses we've equated "harassment" and "offense." Just because we find an opinion offensive, doesn't necessarily mean we're being harassed - even if we hear it multiple times from many people around us. I hear and read many comments from people nearly every day that I find personally offensive - but that doesn't mean I'm being harassed. I'm just spending a lot of time with people with different views from my own.

While I find it at times wearisome, I have no inclination whatsoever to try and control what my students and colleagues can and cannot say.

AND ANOTHER: Tim Burke wants to know where I get the idea that a private college that advertises itself as a bastion of free speech can be liable for fraud if it does not make good on that claim. The short answer is, that idea is everywhere in libertarian-oriented discussions of campus speech. A more precise answer is: for a good primer on how contract law applies to private colleges and universities, see Alan Kors and Harvey Silverglate's The Shadow University, pps. 344-351. Kors and Silverglate explain there how private colleges and universities are, like other private entities, obligated to fulfill the contracts that they make. One source of those contracts is the statements about policy and mission these schools make in their brochures, promotional booklets, and other published materials. When a private school represents itself to current and prospective students as an institution committed to free speech, and then fails to uphold that commitment (by, for example, having one or more speech codes on its books), then it is very arguably guilty of fraud.

FIRE has been coordinating--and winning--lawsuits against speech codes at public universities for the past year. In its second phase of speech code litigation, it will coordinate suits against private schools that violate their contractual obligations to students by claiming to offer free speech and then failing to fulfill that claim. It goes without saying that a private school that is up front about its restrictions on speech is in the legal clear.

Here's the relevant language from speechcodes.org:

Eventually, FIRE will file lawsuits against speech codes at public institutions in every single federal appellate circuit.

This strategy focuses first on public colleges and universities, because the Bill of Rights obtains there, and because most private institutions that censor claim an alleged legal obligation to censor unpopular speechóa claim that is undone by settling the constitutional issues. Ultimately, though, the repercussions from these lawsuits will spread far beyond public institutions. Most private colleges and universities are unwilling to state that they have chosen to offer their students fewer freedoms and protections than are available to students at public colleges and universities. If one ends the reign of partisan censorship in public higher education, it will change the dynamic of academic freedom everywhere.

FIRE's legal challenge to speech codes at public institutions is only the beginning. Soon to follow will be legal challenges against private universities that commit fraud and that violate their contractual obligations by promising free speech and delivering only censorship. Of course, private institutions are not bound by the First Amendment, but they are bound by how they sell themselves to prospective students, and by the promises they make in their brochures and student handbooks. Private universities will be forced to end the fraud of promising free speech but delivering selective oppression. ÝIn the second phase of litigation, FIRE and its allies will hold private institutions to these standards.

UPDATE: KC Johnson concurs:

...almost all colleges, I've discovered, have tucked away in their college Bulletins some sort of provision guaranteeing academic freedom, free speech, or both to students. Obviously the former is almost never implemented, and free speech only when forced. Legally, however, the Bulletin constitutes a contract between the individual student and the institution, and a college theoretically could be liable for not upholding the commitments made in the Bulletin.