THE BLOG
09/02/2014 05:30 pm ET Updated Nov 02, 2014

This Academic Year, Colleges Should Eliminate Speech Codes -- Or Prepare for Their Day in Court

One would think that American colleges and universities do not need many added incentives to uphold the free speech rights of their students and professors. After all, protecting freedom of speech on campus meets universities' legal obligations under the First Amendment (in the case of public institutions) and honors institutional promises of free speech made in official handbooks and materials (in the case of private schools). Doing so allows students and faculty members to exchange diverse viewpoints with one another and to learn from their fellow classmates or colleagues. And it ultimately benefits us all by allowing society to reap the benefits of a true "marketplace of ideas" on campus, where ideas battle it out and get tested.

Despite all of this, the majority of our nation's colleges and universities are not faring well when it comes to respecting freedom of speech. The most recent annual speech code report by the Foundation for Individual Rights in Education (FIRE, where I work) found that approximately 59 percent of the 427 colleges and universities surveyed maintain policies that "clearly and substantially" restrict constitutionally protected speech. That's actually an improvement from six years ago, when 75 percent of schools had at least one such policy, which we call "red light" speech codes.

Universities are doing equally poorly in practice, demonstrating that these illiberal policies are not just some hypothetical concern. A quick look through FIRE's website, press releases, and case archives shows that in case after case, colleges continue to censor students and professors in indefensible ways and punish them for clearly protected expression.

As a new academic year gets underway, we at FIRE are hopeful that change is around the corner. And we have altered the incentive structure for universities in order to achieve that goal and permanently remove the culture of censorship from campus.

On July 1 of this year, we announced a bold new initiative: the Stand Up For Speech Litigation Project. To launch the project officially, we coordinated four federal lawsuits to vindicate students' and faculty members' First Amendment rights--in addition to two others that were filed before we announced the project. And this is just the beginning. We will support additional lawsuits in every federal circuit until public colleges and universities get the message that maintaining and enforcing unconstitutional restrictions on speech and expressive activity is unacceptable. In the cases filed so far, students and professors at Chicago State University, Iowa State University, Citrus College in California, Ohio University, the University of Hawaii at Hilo, and Modesto Junior College (MJC) in California have bravely challenged their schools' policies and practices stifling protected speech. Information about each of these cases, as well as the overall project, is available on FIRE's website.

The MJC case, which was filed prior to the official July 1 launch, has already resulted in a settlement: the college agreed to eliminate a horrendous and unconstitutional "free speech zone" policy, open up the public areas of its campus to expressive activity, and pay $50,000 in attorneys' fees and costs. More than just a victory for students' First Amendment rights at this public college, this settlement reinforces the principles behind the Stand Up For Speech project and should send a message to every public college and university that maintains a similar free speech zone policy or otherwise unconstitutional speech code. These institutions should be more than a little concerned about being sued in federal court, having to pay attorneys' fees and other legal costs, and ultimately being forced to revise the very policies they should have scrapped in the first place.

Of course, colleges don't have to go the difficult route. My colleagues at FIRE and I are more than happy to work proactively with university administrations on their speech codes and to improve those policies to meet constitutional standards. Not only that, our expertise is available completely free of charge.

This academic year, I encourage colleges and universities to work with FIRE on the necessary revisions to their policies. Don't just take my word for it, either: Ask the University of Florida (UF), which in early August eliminated the last of its speech codes in consultation with FIRE. This made UF the latest institution to join our list of "green light" universities, which are schools with no written restrictions on protected speech (the opposite end of the spectrum from the "red light" rating discussed earlier). As the 19th university to earn an overall green light from FIRE, UF received extensive praise in a national press release we sent to our media contacts and supporters.

Now, if you are a college administrator, ask yourself: Would I rather be praised in a national press release or named as a defendant in a federal lawsuit? The answer seems simple, doesn't it? That's why I'm hopeful about the prospects for meaningful policy change in the new academic year and beyond. Let's hope I'm right. Students' and faculty members' First Amendment rights are at stake.