Matthew Boyer

Research: College

12-13-13

Professor Goeller

Diminishing First Amendment Rights on Campuses due to Administrative Overreach

Abstract

This analytic paper examines the suppression of speech and expression on college campuses across America. By studying the hundreds of cases regarding university students and faculty such as professors, the purpose for higher education institutions to suppress speech became more clear. The ability of universities to suppress speech comes from speech codes enacted by the schools administrations. These codes work as a mechanism to derail hate speech yet are utilized by universities to subjectively eliminate unwanted speech and expression on campus. The demand to have this control over a university's public image increased with the continued financial issues in higher education. Since funding has become a primary issue for universities, so has good recruitment and therefore public relations management. The reality of this speech manipulation is that such censorship fosters an educational environment that is the antithesis of free academia.

Introduction

The existence of higher education in the United States has always stemmed from the idea that academic freedom and the rights of man are vital to a good citizenry. For well over a hundred years the ideas of liberty and free thought have echoed down the hallways of collegiate institutions, pressuring students and professors to challenge any lifeform of the status quo. Although higher education emerged from the shackles of tyrannical government oversight some years ago, today's universities are suppressing the First Amendment rights of those on their campuses. Both college students and faculty are victims of the subjective enforcement of university speech codes by administrators outside of  the common practice known as due process. The codes are established to protect people from hate speech yet are actually utilized by institutions to cater their public relations desires. A university’s image is increasingly of concern to their administrations in light of  issues regarding their funding. Since college administrations have shifted their financial and bureaucratic focus away from education toward manipulating speech and media on campus it fosters an academic environment that is counter-productive to the aims of higher education and antithetic to the ideal of a free academy.

The main purpose of higher education in a free society is to facilitate the open dialogue and debate that is necessary to disseminate ideas freely regardless of their politics, as the Supreme Court has recognized in the past. The Supreme Court noted this importance in 1957, “Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise, our civilizations will stagnate and die” (Sweezy v. New Hampshire qtd. by Lukianoff, p. 19). Americans have historically acknowledged that the purpose of higher education is not limited to the need for an educated workforce, but also to foster an academy that embraces free thought so that all ideas can be heard and considered. This includes the need for universities to be critical of our government, society, each other and themselves. The Supreme Court suggested this notion in regard to their free speech ruling in Gitlow v. New York. The decision was summarized in Unlearning Liberty, “the Supreme Court has interpreted the First Amendment as strongly protecting political dissent, satire, and parody--the very types of speech often attacked on campuses” (Lukianoff, p. 29). In instances regarding speech that is most commonly suppressed on college campuses, the speech is sometimes relates to a particular political viewpoint or critics a given university administration. Although it is easy to deny such allegations against universities as a politically conservative argument against allegedly liberal universities, the numbers indicate the issue to be overwhelmingly prevalent. According to the Foundation for Individual Rights in Education (F.I.R.E.),  “68 percent of more than 330 top universities and other schools explicitly ban speech that the First Amendment would protect if uttered off campus” (Taylor, p. 2). This suggests that this problem is not specific to a particular political perspective and that the problem is in fact widespread. The ability for administrators of educational institutions to manipulate speech through the enforcement of their speech codes is not limited to higher education. Ianelli quoted the U.S. District Court for the District of Connecticut when he wrote about their decision regarding a case that dealt with offensive speech, “[the] scope of...punishment lay within [the school’s] discretion” (Ianelli, p.1). This suggests that although some speech may be deemed unprotected, especially in public schools, Federal courts have set a standard for handling said speech in which school administrators have little-to-no limitations on how they punish violators. Although the Supreme Court has historically been a proponent of First Amendment rights in academia, many American’s rights have still been undermined by administrators.

University students across America must obey the speech codes at their schools which sometimes include restrictive policies such as free speech zones and additionally established vague standards for speech. Chris Morbitzer at the University of Cincinnati was one of those students. As a member of a political organization on campus, he was unfairly targeted by the University’s administration. This is suggested in a Forbes article illustrating his conflict with the university when it notes, “The free speech zone Cincinnati wanted Morbitzer to restrict his speech to was an out-of-the-way patch of grass the comprised just o.1% of the school’s 137-acre campus” (Perrino, p. 2). The administration forced him and his group, Young Americans for Liberty, to register their advocacy days in advance otherwise he would be arrested and could potentially face jail time. It took a lawsuit between Morbitzer and the University of Cincinnati along with the help of FIRE and public pressure to get the University to change their policy. For a public institution such as this one to so blatantly violate the First Amendment rights of their students in a subjective fashion as done here is contrary to the mission of most public universities like Cincinnati. Speech rights violations are not limited to public institutions though, as is clear when analyzing the 2002 case about Harvard Business School’s newspaper The Harbus. That year the computers went down the week of job interviewing and the paper decided to publish a cartoon spoof about the incident. This is mentioned in Unlearning Liberty when it notes, “For this, the editor of The Harbus and the cartoonists were called into the office of Steve Nelson, the director of the MBA program, who reportedly threatened them with punishment for violating Harvard’s ‘community standards’” (Lukianoff, p. 87-88). Although students generally do have higher standards to accommodate at private and Ivy League institutions such as Harvard, they still have speech rights as American citizens. Through intimidation the Harvard administration was able to have the editor of the newspaper resign and therefore establish a precedent that no students shall criticize the school. The ability of private sector schools to control speech on campus is much greater than public institutions. This is suggested by Conn when he writes about Liberty University’s derecognition of College Democrats, “Meanwhile, the Liberty student Republican club would be allowed to continue as an official university organization with university funding” (Conn, p. 1). Here the notion that private and especially religiously-affiliated universities such as Liberty are able to manipulate speech and expression on campus because of their codes is suggested. Although as a non-profit university Liberty is prohibited from endorsing particular parties and candidates due to tax-exceptions, Liberty took official university recognition away from the College Democrats because they claimed that the national Democratic Party’s stance on certain issues was contradictory to the schools religious philosophy. Although public institutions cannot claim such an offense, as suggested by the other examples of speech violations students across the country in public and private higher education institutions are witnessing their own speech rights decreasing as schools enforce speech codes and zones that limit an individual's ability to exercise their First Amendment rights.

The decreasing ability of people to exercise their First Amendment rights on campus is not just limited to students, but encompases faculty too. Sometimes the administration’s enforcement of their speech codes doesn’t necessarily have political motives but is carried out due to an administrator's personal frustration. This is suggested by Lukianoff when he writes about a professor at the University of Wisconsin--Stout, “[The University] claimed that the posters were removed because their top lawyers believed they ‘constituted an implied threat of violence’” (Lukianoff, p. 142). Below were the two posters that theater Professor James Miller hung outside his office. The first one he put up due to his admiration for the sci-fi movie it references. The second poster was a response to the chief of police and director of parking services taking down the first poster without any complaints by others.                                                         

Although a it took a lawsuit, public pressure and even the actor in the first poster to contact the university for their misinterpretation of the speech to concede, the professor still went through the long fight with the possibility of losing his job simply over expressing himself. Additionally, university administrations have double standards for their own political expression. For example, the president of Columbia University used his position of power to manipulate debate on campus. President Lee Bollinger welcomed then president of Iran Ahmadinejad to speak on campus yet was vocal against ROTC and anti-illegal immigration activists at Columbia. This double standard is illustrated in Free Speech and Double Standards, “This is also the same Bollinger who joined a vote in the university’s Senate in 2005 to continue a 36-year band of ROTC programs ... because of the military’s discrimination (which I, too, deplore) against service members who admit to being gay” (Taylor, p. 1). Even though Bollinger took a strong stance against organizations that discriminate against gays such as the United States military, he applauded himself for his ability to foster open dialogue for hosting one of the most bigoted and anti-LGBT heads of state in the world. When university administrators exercise their power in a fashion that permits particular political speech yet suppressed the rest, what is their purpose?

The ability of university administrators to manipulate speech and expression as just illustrated stems from their justification of speech codes on campus. Speech codes are enacted as mechanisms to promote an ideal society on campus. This notion is suggested by Lukianoff when he writes about a college’s all-encompassing code, “Some of these speech codes promise a pain-free world, like Rhode Island College’s policy stating that the college ‘will not tolerate actions or attitudes that threaten the welfare of any of its members’” (Lukianoff, p. 41). The belief that a public institution is able to micromanage the attitudes of their students is ludacris itself, not to mention the vague nature of “the welfare of others.” These codes are meant to promise their students and potential students a peaceful university which they could picture themselves attending. The enforcement of such codes is the responsibility of administrators that subjectively punish certain speech they deem hateful, offensive or threatening. Many residence life administrators oversee such initiatives at universities and in doing so impose a particular ideal on the student body (Lukianoff, p. 104). The American College Personnel Association is one of the larger umbrella organizations of college administrators that oversees the implementation of residence life programs that promote speech codes. The vice president of ACPA and director of such programs at the University of Delaware Kathleen Kerr even recognized their ultimate purpose in a secret conference the organization held. Kerr said, “With this conference, we relight the candle ... and hate, fear, ignorance, and stupidity will not snuff it out [again]. ... Journey with me towards our revolution of the future” (Kerr qtd. by Lukianoff, p. 106). For administrators like Kerr, residence life programs and related speech codes such as the ones found at the University of Delaware are meant to work as tools that combat any form of hate and ignorance in modern society. Supporters of such codes believe they are doing society justice by molding the minds of the young people who pay to attend their colleges and universities. An example that truly illustrates the idyllic nature of these speech codes is one found at Drexel University, “Harassment includes ‘inconsiderate jokes’ and ‘inappropriately directed laughter’” (Lukianoff, p. 43). The issue with such speech codes is obvious since the basis of our Constitutionally-guaranteed First Amendment rights rely on the conviction that “we all must accept that no argument is ever really over, as it can be challenged if not disproved down the line. Second, no one gets special, unchallengeable claims of ‘personal authority’” (Lukianoff, p. 23). Not only has the rise of residence life programs and speech codes on campuses paralleled an increase in administrative oversight, but the desire to unconstitutionally limit speech via such codes is perpetuated by a drive to be politically correct.

Although much of the justification universities give for having unconstitutional speech codes on their books revolves around catering the sensibilities of their students, administrators normally use them as a public relations tool for the larger university community.  The only way that an anti-free speech movement is able to take root in the United States is if the intentions of the speech limitations are for some greater good. Universities defend their speech codes as purposeful in that they help to combat injustice in our society, although as noted previously the codes not surprisingly wind up being abused for political or personal aspirations. This is know as the “‘GIRA Effect,’ standing for Good Intentions Run Amok” (Lukianoff, p. 28).  Speech codes on college campuses have been around for quite some time but their initial intentions are much different than the reality of their enforcement. The U.S. Department of Education recognized this when they “issued a letter of clarification to practically every single college in the country recognizing that harassment rationales were being abused” (Lukianoff, p. 51). The vast abuse of the speech codes for image related issues or other administrative purposes was so apparent that our country’s own Department of Education has to address the issue. For example, one student at Valdosta State University in Georgia not only had his speech rights violated by the public university’s administration, but in doing so the administration granted the civil student no due process rights. Hayden Barnes, who was an activist on campus was “‘administratively withdrawn,’ effective immediately. Stapled to the note was the only evidence offered for this decision: the collage” (Lukianoff, p. 1). The president of Valdosta State University, Ronald Zaccari, found a political collage made by Barnes to be threatening since it directly called out Zaccari. Since the president had elaborate plans to build an environmentally unfriendly parking garage that would cost $30 million, Barnes engaged himself in some civil protests. The president immediately expelled Barnes from the school and even used mental health records of the student in an attempt to justify his decision. The mere note that Barnes received, without questioning or trial, illustrates the administrative overreach enabled by speech codes such as the one now overturned at Valdosta State University. The president was concerned about his image and the potential of new construction at the university, he did not believe that Hayden Barnes was threatening his life by his environmental protests on campus.

The control of public relations by universities encompases much more than minor protests and has changed since an increase in privatization in higher education. Today colleges and universities are spending much more than they ever have been on their image. This notion is suggested in Honolulu Civil Beat when it mentions expenditures at the University of Hawaii, “Data suggests that UH’s communications expenditures are on par with those at comparable public universities. But many of those institutions have swelling public relations budgets” (Wong, p. 1). The University of Hawaii is spending roughly $65 per person on public relations. This signals the need for universities to recruit more students in an effort to bring more money into the university community. One of the ways schools spend their money is by hiring task forces of educated people to handle the institution's communications. This reality is illustrated in Walden on Wheels when the author talked about his friend’s job, “He had the title of admissions representative, but he was really no more than a ‘glorified telemarketer’” (Ilgunas, p. 135).  Although, the growth of public relations administration is paired with the many other changes in higher education administration. This is suggested in Higher Education and Privatization when it notes that “Privatization includes more centralized decision making, declining acceptance of academic norms, loss of faculty autonomy” (NEA, p. 1). The degree of bureaucracy at any given university has increased with their efforts to privatize.  This bureaucratization has resulted in students like Hayden Barnes being subjected to the centralized authority of Valdosta State University and justified through speech codes. Similarly, a professor at the University of Denver experienced the loss of faculty autonomy that is associated with privatization when his class about the war on drugs was banned from the school and he had been accused of sexual harassment (Lukianoff, p. 51). Professor Arthur Gilbert had to stop his course and attend training for the racy content in his class, that according to the school’s policy on harassment, made him guilty of sexual harassment. News of such instances rarely leaves universities as suggested by Scott Jaschik who works on issues related to higher education, “‘What I get relatively few of are pitches that relate to the hot ideas, debates and criticisms in higher education today” (Jaschik qtd. by Wynne, p. 2). Here Jaschik is suggesting that universities, since they have strong control over their media relations, don’t allow all stories such as ones critical of the university to surface. Although Lori Packer of the University of Rochester suggests this might be necessary when she states that “With increasing attacks on public spending for research ... I’d argue it is more incumbent upon us than ever to get our own stories out there” (Packer qtd. by Cohen, p. 2). Packer, as someone part of a public institution, notes that it is vital for the existence of universities such as hers to have this progressive management over their media relations since their image has never been more important. The micromanagement of speech and expression on campus has become a more prevalent trend as issues concerning the image of the university take priority over the true meaning of academia.

The results of limiting First Amendment rights on college campuses does not just promote a political agenda, but especially undermines the sole purpose of a free academia in a free society. The results of dumbing down debate as is done when speech codes and public image take priority over true education are already visible. The First Amendment Center released a survey in 2009 that found that 39% of Americans are ignorant to even one right in the First Amendment (Lukianoff, p.17). If students are not even aware of what rights they have as individuals, it is especially hard for them to defend themselves when they are being violated. A piece in the American University Law Review illustrated the this impact on academia well, “By failing to apply sufficiently rigorous scrutiny to school officials’ justifications for the silencing of student dissent, courts become complicit in schools dereliction of their duty to help students acquire the capabilities of citizenship” (Brown, p. 18). In other words, those accountable for enabling such an academic environment as found in higher education today are failing future generations of Americans. When administrators suppress speech, when courts fail to defend students and when students cannot truly learn, the whole purpose of higher education falls on its face. If students grow up in an academic environment in which they are not actually challenging everything they know and are learning, then such students are not being enlightened.  As Lukianoff put it, “Unfortunately, comfortable minds are often not thinking ones” (Lukianoff, p.34). The prioritization of public image over true discourse at colleges and universities simply does a disservice to the whole country.

In conclusion, First Amendment rights on college campuses have been under attack via speech codes and zones due to university administrations’ prioritization of public relations that has lead them to subjectively enforce said codes in an effort to maintain a good image. The result of such a bureaucratic expansion has mainly impacted the rigour of a genuinely free academy. In the event that students and professors must accommodate ridiculous and all-encompassing speech codes in an effort to avoid punishment, the outcome is an educational environment that is not educational at all.  

Bibliography

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