At the NAS website, FIRE president Greg Lukianoff surveys the history of campus speech codes, explaining their origins as well as their surprising resistance to reform:

So how do speech codes continue to survive? I have come to the conclusion that there are at least four major factors at work:

Ideology: Political correctness is still alive and powerful on our college campuses. The belief that some students (and, indeed, some administrators) have a right not to be offended plays a part in dozens upon dozens of incidents every year in which FIRE must come to the defense of a student or faculty member who said "the wrong thing."

"The wrong thing" can range from publishing an "insensitive cartoon," to sending out an overly ironic Halloween invitation, to an attempt to satirize or protest any number of issues, from affirmative action to terrorism and religious extremism.

Bureaucracy: What I find perhaps most galling about universities' unwillingness to defend free speech and provide basic due process rights for students is that students are being asked to pay increasing portions of their lifetime earnings for the privilege of attending these institutions. Furthermore, their tuition money is far too infrequently spent on improving faculty-to-student ratios or otherwise guaranteeing the quality of education. Rather, it goes toward an ever expanding army of student judicial officers, residential life officials, and other administrators whose primary existence seems to revolve around keeping an eye on students and being involved in their lives. The results have not been surprising, as administrators justify their positions and salaries by diagnosing more and more problems in the behavior, speech, and even attitudes and beliefs of students.

Liability: This is the factor that I believe gets the least attention from the critics of campus political correctness. An ever-growing industry of university lawyers and "risk management" experts has left universities in a panic about avoiding lawsuits. Unfortunately, some poorly decided harassment cases, as well as case law indicating an increased legal duty on the part of campus administrators to police the behavior of students, seems to have encouraged many plaintiffs. At the same time, the risk management industry has a vested interest in exaggerating how serious and complex the state of the law actually is, and in this process free speech and due process often lose.

Genuine ignorance of the law, the principles of modal liberty, and the reality of speech codes: Starting in 2000, FIRE has made a point of sending a representative to the annual Association of Student Judicial Affairs conference, and we have led seminars there concerning abuses of student speech rights on campus. While there are notable exceptions, I have been routinely surprised by how much misinformation and lack of understanding there is among both college administrators and university counsels regarding basic principles of free speech and academic freedom.

Still, though, speech codes are still on the books, and even if they are not regularly enforced, their sheer presence as policy is itself a real and substantial wrong. So what are the options for getting them off the books? Lukianoff explains the success FIRE and the Alliance Defense Fund's David French have had with their litigation projects, and also summarizes the various educational and publicity efforts FIRE spearheads. Among other things, FIRE is working on establishing an educational program for university lawyers, and has also established a fellowship to support legal scholarship on the subject of speech codes. That strikes me as very positive--part of a necessary move from the watchdog role to the mentor role. The move from the one to the other--or the addition of the one to the other--contains enormous possibilities for real and lasting change.

The elephant in the living room, of course, is legislation. Why not simply make laws that will secure free expression on campus? Lukianoff is interesting on this point:

FIRE has traditionally held a healthy skepticism of the effectiveness of legislation. Legislation tends to be a clumsy instrument, and oftentimes even well thought out and well constructed legislation becomes highly distorted through the political process. We have, therefore, avoided supporting legislation in the past.

Looking forward, however, legislation might be appropriate in certain areas. Legislators could very well require universities to follow controlling case law, to define harassment in a way that follows the appropriately narrow formulation of the only student-on-student harassment case to reach the Supreme Court, Davis v. Monroe County Board of Education, and to provide further redress for students and faculty members whose free speech rights have been violated.

Congress could also give teeth to contractual requirements so that private universities face more serious consequences should they fail to live up to their promises regarding free speech. Thus, well constructed legislation could help end the scandal of campus speech codes forever. FIRE will be exploring how to best achieve these results in the coming years.