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'Unlearning Liberty'

January 3, 2013

In spring of 2007, Valdosta State University student Hayden Barnes was expelled for posing a “clear and present danger” to campus. To protest an expensive and environmentally unfriendly parking garage, Barnes had created a collage illustrating potential dangers the garage might cause (smog, environmental destruction, etc.) and posted it on Facebook, calling the project the “[Valdosta State President Ronald] Zaccari Memorial Parking Garage. The “memorial” bit referred to Zaccari’s calling the garage part of his legacy, but the president, who had been assured Barnes was harmless, claimed to take it as an “indirect” threat against his life and unilaterally decided Barnes deserved no due process. After nearly a year of jumping through hoops, Barnes managed to get readmitted after filing a lawsuit with help from the Foundation for Individual Rights in Education. But by then, he didn’t want to go back.

Since its founding in 1999, FIRE has defended college students and staff who believe their fundamental rights – freedom of speech, expression, association and conscience, religious liberty, and due process and legal equality – were violated by overly broad administrative rules and an educational culture that, directly and indirectly, censors unpopular opinion. Its president, Greg Lukianoff, chronicles many of those cases in his new book Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books). He opens the book with Barnes’s case, which is far too nuanced to be fully explained here. Lukianoff answered questions about the book via e-mail; some answers have been condensed for space.

Q: You call the book Unlearning Liberty, which seems to imply things are getting worse. Are they?

A: I don’t pretend or imagine that there was ever some perfect “Golden Age” for freedom of speech on college campuses. Certainly the early half of the 20th century and the ‘50s and ‘60s saw notable attempts to interfere with or prevent political discourse on campus.

Generally, however, and from both looking at case law and from talking to people educated during the period, it seems as though things may have been about as good as they were going to get in the late ‘70s (a decade that included some great Supreme Court cases strongly protecting the free speech rights of college students) and even maybe the early ‘80s. This was the brief time in which the old anti-political speech censorship and in loco parentis stance on campus had largely ended, but before the more recent rationales for restrictions on freedom of speech, sometimes roughly referred to as “political correctness,” began.

One way in which you can tell if things are worse now than they were before is by looking at campus speech codes. Speech codes are university regulations or policies that prohibit expression protected by the First Amendment (at public universities, which are bound by the First Amendment) or would be protected by the First Amendment in society at large (at private universities, which aren’t). If you use speech codes as a metric, there are certainly more speech codes on college campuses these days than there were in the 1980s.

On the other hand, thanks in no small part to FIRE’s work and more than a dozen lawsuits since 2003, the percentage of colleges with what FIRE dubs “red light” speech codes -- that is, codes that substantially restrict free speech on campus -- is declining from where it was at when we started producing our official speech codes report. In 2007, 75 percent of public colleges had red light speech codes and there were only half as many of what we call “green light” colleges. Today, 65 percent of colleges maintain “red light” speech codes.

Q: You document many egregious and clearly startling cases of First Amendment violations. But what about the flip side -- censorship that is not sensational enough to make headlines, that has become so commonplace people might not think anything of it?

A:
Yes, I think some of the greatest harms to free speech on campus are the cases of censorship that are not so spectacular as to make for a good, compelling press release. The horror stories I talk about in the book are notable in part because they dramatize how real students suffer when administrators don’t recognize or support free speech. They show how far afield some administrators have gotten. A university is unlikely to be an unfettered bastion of free speech one day, and then decide, for example, to find a student guilty of racial harassment for publicly reading a book the next. It takes an attitudinal shift to create that environment in the first place.

More pernicious than even some of the worst individual cases is the fact that censorship teaches students to accept a remarkable level of regulation over what they can say, where they can say it, and how it must be said. I was on an NPR show recently with a group of students talking about free speech issues when one student said that over all her college was pretty good about free speech, and that the 10 days students need to wait to get permission to protest on campus was fairly enforced. I found it disturbing, but not surprising, that the student should believe that there was anything kosher about requiring a 10-day permission process to exercise basic First Amendment rights on a public campus. When such codes are challenged in court, the universities lose, but the law doesn’t matter much when too many students have already accepted that people in authority have tremendous power over what they say and how they say it.

Q: You talk about colleges banning hard-to-define things like "attitudes," "emotional harm," "embarrassing assumptions," and remarks causing another person "indignity." As you note, it's hard to imagine how some of these cases could play out in an objective way. So are students often prosecuted under these speech codes, either through the judicial system or with no due process?

A: The reason why I emphasize those vague restrictions is because they show how poorly the authors of these codes understand some of the fundamental values of a free society. The lack of a sense of boundaries by those writing the codes should itself be deeply troubling.

A standard argument that I run into is: “These codes are not enforced, so who cares?” First, I spend a lot of the book debunking the idea that these codes are not enforced. But underneath the claim that codes are only a big deal if they are enforced is a profound misunderstanding of the role of law and regulations in our democracy. To the degree law and regulations serve as a normative framework — socially agreed-upon dos and don’ts — they succeed primarily by spreading the word of what you should do and rely on the fact that in a society that respects the rule of law, putting the rules down on paper achieves something.

Especially in educational institutions that gain part of their privileges through their benefit to our democratic society, the educational component of what actually goes into rules and regulations is crucial. By banning different attitudes, perceptions, and values, colleges send the message that policing discussion is the proper role of authority, essentially saying that enlightened society should not only censor but also delve into areas of the private conscience of individuals using the threat of punishment. This is a terrible lesson to teach students in our diverse and pluralistic society.

Q: It seems like a lot of the big censorship stories we hear about these days have to do with students being punished for things they say on Facebook or Twitter (athletes, especially). How has the rise of social media affected free speech on campuses, for better and/or worse?

A: The policing of what athletes say on social media has grown into an industry with remarkable speed. The policing of Facebook has resulted in some pretty terrible cases. The one that was only resolved earlier this year at Syracuse University involving an education student comes to mind, as does a heartbreaking case where the first member of a family to graduate from college was prohibited from attending the ceremony as punishment for an innocent Facebook comment.

Overall, I’m more hopeful about Twitter, however. I believe that the 140-character maximum and the nonstop flow of tweets forces administrators to ask themselves a question that they should already be asking about all student speech: “Am I sure I really even understand what the students even mean?” Students, especially today, make jokes that often involve multiple levels of irony, are often actually saying precisely the opposite of what they sound like they are saying, or are riffing on jokes that only a handful of observers would even understand. Policing them is pointless — and often counterproductive.

Q: You connect a shortage of free exchange of ideas to disconcerting findings in Academically Adrift, regarding students' abilities to think critically and argue more than one side of an issue. (In short, they're not showing much improvement throughout college.) Would you argue, then, that a stifling of free speech on campus also affects students academically?

A: I believe that the impact of speech codes, of punishments for mildly offensive speech — and, perhaps most importantly, the attitudes that create these restrictions in the first place — dissuade rather than promote students from talking about interesting hot topics and from having those discussions across serious lines of political, ideological, or philosophical difference.

This leads students to replicate a problem that we see in the larger society whereby the safest course of action to avoid controversy or punishment is to surround yourself with people you already agree with politically or ideologically. This behavior gives rise to group polarization, and, as research demonstrates, polarization leads to more groupthink and less critical thinking.

Of course, part of the findings of the Academically Adrift study was that students were not learning critical thinking, and I think that if their educational environment was dominated by the ethic of promotion of meaty debate and discussion — and, perhaps most importantly, seeking out the intelligent person you disagree with for engagement — students would not have fared so miserably. So yes, I believe that stifling debate and discussion inevitably decreases the maximum benefit someone can gain from an educational environment.

Q: It's clear that boosting diversity on campus is a top priority for colleges today, and they like to boast about it when they're successful. But doesn't the stuff you write about here undercut those efforts and purported values?

A: The narrative that gives speech codes a certain moral force is that they are necessary to promote diversity on campus. I believe this is not only something of a boondoggle, but it’s also insulting to students.

I do not believe that in the absence of speech codes, universities would simply devolve into pits of ignorance in which racist points of views would dominate. Racist ideas are not particularly successful ideas in society, and I do not believe that the attitudes of tolerance and respect for diversity are primarily coming from a top-down direction.

Efforts to curtail free speech might, in fact, hinder the promotion of tolerance and diversity, as was the case at the Claremont University Consortium, the University of Delaware, and Syracuse University.

Increasingly speech codes and regulations are used to punish students who are merely critical of their university or whose speech is in some way simply inconvenient. There is nothing at all surprising about this to a First Amendment lawyer. Restrictions on civil liberties and civil rights are often justified with the best intentions in the beginning, but often simply become tools of those in power to stifle criticism, leading almost inexorably to abuse.

Q: FIRE has been one of the most outspoken critics of the Education Department's Office for Civil Rights mandate that when adjudicating allegations of sexual assault, colleges use the minimal evidential standard: "preponderance of evidence," meaning the panel must determine it's only more likely than not that a crime occurred -- in other words, they must be 51 percent certain. This is an issue that's been hotly debated over the past year or two. How does it relate to the broader assault on liberty that you write about?

A: If we knew that everyone in our society was actually omniscient and also 100 percent honest at all times, we could start to make the argument that we may not need an open exchange of ideas. However, given that we are one million miles away from anything like perfect knowledge, perfect predictions, and perfect objectivity (a point I see no reason to believe we will ever reach), keeping the flow of ideas and discussion free will remain the right idea.

Similarly, due process is a recognition that we are, as individuals, deeply biased, deeply fallible, and have a tragic tendency to rush to judgment. We need structures in place that mitigate our own fallibility and biases and that’s why due process is important. I remain skeptical that colleges are equipped, skilled, and appropriate places to adjudicate crimes as serious as assault. If this is going to be the case, at the very least we should make sure that that the accused enjoy a standard of evidence that represents something better than, as one administrator called it, “50 percent plus a feather.”

But there is one crucial point I need to make every time that the April 4 “Dear Colleague” letter comes up. And that is while the letter focuses on sexual assault, the Office for Civil Rights is empowered to regulate harassment, and the mandated reductions of due process in the letter apply to the adjudication of any harassment claim, with the recognition that sexual assault is one very extreme form of harassment. So the real potential for disaster lies in the simple fact that most colleges maintain contradictory, vague, and broad harassment codes. In some particular cases that I talk about throughout the book, these codes by their plain language make almost every student guilty. To have vague and broad codes on the one hand, and then to lower the certainty with which you convict people of violating those vague and broad codes, you create a great possibility of serious miscarriages of justice. Add to that the fact that most of these hearings are done in secret, sometimes relying on the Family Education Rights and Privacy Act as a rationale to prevent transparency of these hearings, and we have a formula that that should trouble anyone concerned about fairness and justice in campus courts.

Q: You say a polarization of ideas and opinions has become the norm on campuses. The environment you describe -- in which people are unwilling to hear other viewpoints, and incapable of shifting their own opinions -- reminded me of another: Congress. Is the institution of higher education a culprit in today's openly hostile political climate, in which compromise often seems impossible?

A: I don’t think higher education is the primary cause of our country’s political polarization. For that we have all sorts of demographic, technological, and historical factors at work.

Compelling data show that the country as a whole has physically shifted into enclaves, neighborhoods, and cities of the like-minded. My point about higher education’s role is not so much that higher education is solely responsible for creating polarization, but more that it’s our one institution that could be helping us step outside our Internet and broadcast media echo chambers by teaching the difficult but useful intellectual habit of not only hearing the other side, but actually seeking out the intelligent person you disagree with as sort of a check on our own certainty. In this way, I think Congress’s polarization is a symptom of our nation’s polarization overall. And while this kind of tunnel vision has become expected in Congress, there is no excuse for it in higher education.

 

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