By Bonnie Snyder February 5, 2018
Over the course of this week, FIRE will be featuring the winning essays from our 2017–2018 Free Speech Essay Contest, beginning with third-place winner Daniel Garcia of Aliso Niguel High School in Aliso Viejo, California. His essay is below.
Harvey Silverglate, co-founder of the Foundation for Individual Rights in Education, once said: “Harvard’s idea of diversity is for everybody to look different and think alike.” His message is not a solitary criticism of an Ivy-league establishment, but rather a forewarning about the current efforts to dismantle free speech in colleges across the nation.
Two years after the ratification of the Constitution, the Founding Fathers felt it necessary to give to the people a set of protections known as the Bill of Rights. In light of the recent departure from an authoritarian government, the first amendment they added protected two of the most important freedoms necessary for a free society: speech and religion. Since then, the words “freedom of speech” have echoed throughout our nation’s history. It was what allowed the once “radical” abolitionists to publish pamphlets advocating the end of slavery. It was what allowed so many to speak for women’s suffrage at Seneca Falls. It was what allowed a rising African-American activist, Martin Luther King Jr., to write his revered letter from Birmingham Jail.
But sadly, this freedom is being abridged in ways our Founding Fathers would have never imagined. Fifty years ago, UC Berkeley stood at the forefront of the Free Speech Movement during a tumultuous political era. It sparked a nationwide advance towards open political discussion and the free exchange of contrasting ideas on college campuses. Half a century later that same campus has become a rallying point against the very movement it once championed. In response to alt-right affiliate and Trump supporter Milo Yiannopoulos arriving on campus, mobs of students and protesters alike began throwing rocks, breaking glass, and starting fires, forcing his speech to be cancelled. In response to those events, influential figures connected to organizations deemed too “dangerous” to bring into universities were blocked from speaking, a trend that only continues to gain traction. Higher education’s intolerance to different viewpoints has sacrificed so many valuable voices and perspectives at the altar of political correctness, while only fortifying the echo chamber that exists in today’s academic institutions.
To quell these riots in times of such high political tension, many college administrations have resorted to the simple workaround of creating free speech zones on campus. In areas outside these zones the First Amendment appears invalidated, bypassed, even nonexistent. It seeks to address the issue of violence arising from controversial speech by simply limiting the areas where diverse perspectives can be heard. Proponents of these free speech zones believe that controversial dialogue can make students “uncomfortable.” Jacob Riis’ exposé of horrendous working conditions in the late 19th century made people uncomfortable. Martin Luther King Jr.’s words made people uncomfortable. Abraham Lincoln’s convictions made half of the country, lightly put, uncomfortable, prompting the bloodiest war in American history. Yet the potential of their words to make their opponents feel “uncomfortable” did not invalidate the messages they had to share. Obstructing the natural course of controversial speech to the ears of the next generation will pay a great disservice to the influential figures that shaped our nation’s history.
If the mission of so many colleges is to prepare students to take on the real world, then the suppression of free speech draws them away from that goal. The world is full of controversial opinions. To think that the next generation of world leaders would harmoniously agree on everything is naïve. Turning our bastions of higher education into cradles of political correctness that shelter students from free thought and discourse would leave graduates less prepared for the world than when they had entered. Although the goal of college administrations is to protect their students, it should not be at the expense of their Constitutional rights. A generation protected from the smallest hint of disagreement will be unable to carry out the debate and discussion necessary to maintain a democracy.
A free society requires free thought. If speech is to become an item simply to regulate and suppress as seen fit, how else could the vast “marketplace of ideas” be shared? Speech is the gateway to our thoughts, and reducing free speech will only internalize the great amount of perspectives and ideas that we as members of a democratic nation are obliged to share. Through the countless examples of civil disobedience around the world from Robespierre to Gandhi to Mandela, it has been proven time and time again that change does not come from the suppression of thought, but rather the outpouring of it. The great advancements towards equality in our nation’s history and around the world did not come from politely chosen words and phrases, they came straight from the most controversial debates of the day.
Free speech on college campuses can flourish once again, but it requires change in the attitudes of both the school administrations and their students. Free speech is the foundation of diversity, a term that so many schools pretend to pursue, but in reality squash at every turn. Administrators must understand that the installation of “free speech zones” are only temporary suppressions of controversial speech that students will inevitably hear once they leave campus. Visitors to academic institutions who seek to voice their opinions and interact with students should be welcomed, not overlooked. Their presence is what keeps diverse opinions, the raw ingredients for discussion, alive and breathing on college campuses. On the other hand, students must become more open to ideas they disagree with. The term “offensive” has, in recent times, become a word thrown around merely to avoid open debate and discourse. Those in college as well as future students must embrace different opinions not just so they better understand others, but also to better understand themselves. But perhaps the easiest place to look for a template for change is the past. So much of our nation’s rich history and the fight for a freer society have hinged on controversial people and ideas. Their testaments to a better world shall not, and will not, end where the “real world” begins.
FIRE was started in 1999 by Harvey A. Silverglate, a criminal and civil rights lawyer in Boston, and Alan Charles Kors, now a University of Pennsylvania history professor. They met as Princeton undergraduates, and in 1998 wrote “The Shadow University: The Betrayal of Liberty on America’s Campuses.” The book is an exhaustive recounting of administrators’ abuses of freedom of speech and due process, and a warning that the academy was being undermined by speech codes — restrictions that colleges and universities began to put in place in the 1980s, in part to protect the growing minority student population from racial intolerance.
The book, Mr. Silverglate said, resulted in a “tsunami of letters and calls” from college students and faculty members seeking help, and he and Dr. Kors set up a nonprofit foundation with a network of volunteers. They expected FIRE to last for 10 years. “The progression things have taken, which I feared, I thought I could prevent,” Mr. Silverglate said. “But I did not.”
FIRE’s mission has not changed, but interest from conservative groups has. Conservatives, Mr. Silverglate explained, are “seriously squeezed in the academic world” and finding their causes “suddenly coinciding with our agenda.” FIRE receives funding from groups like the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation and the Charles Koch Institute. (The institute just co-sponsored a reception for a screening of “Can We Take a Joke?,” a new documentary on free speech and comedy that FIRE helped produce.) FIRE bristles at the right-wing tag often applied to them. They say they are a free-speech group, period.
In many ways, their work has become even more complicated. Most significantly, students are, wittingly or not, becoming vocal opponents of free speech by demanding protections and safe spaces from offensive words and behaviors.
“Something changed,” Mr. Lukianoff said. “I don’t entirely know why.” But he can date the shift: October 2013, at Brown University, when the New York City police commissioner, Raymond Kelly, was invited to speak but was shouted down by students over his support of stop-and-frisk practices.
“I count that as the symbolic beginning because that’s when we noticed an uptick in student press for disinvitations, trigger warnings and microaggression policing,” he said. “That doesn’t mean administrators have stopped doing goofy things, but now they can say, at least more convincingly, that they are being told by students that they need to do those things.”
A 2016 Gallup survey bears out his concerns.
• Asked if colleges should have policies against slurs and other intentionally offensive language, 69 percent of students said yes, while 27 percent believed they should be able to restrict expression of potentially offensive political views. And 63 percent wanted schools to restrict costumes that stereotype racial or ethnic groups.
• While 76 percent agreed that students should not be able to prevent the news media from covering campus protests, nearly half supported reasons for curtailing that coverage: biased reporting (49 percent), the right to be left alone when protesting (48 percent) and the right to tell their own story on the internet and social media (44 percent). For black students, percentages are higher (66 percent, 61 percent and 54 percent).
• Black students were least sanguine about the right to peaceable assembly: 60 percent saw it as threatened, compared with 29 percent of white students.
• Over all, 54 percent polled said the climate on their campus “prevents some people from saying things they believe because others might find them offensive.”
The chill can affect teaching as well. Potentially offending material is being removed from curriculums; trigger warnings are included in syllabuses; and even tenured faculty are seeing career-ending reprisals by wading into discussions or using words that could be construed as racism or sexual harassment.
Just ask Teresa Buchanan, who was fired from her tenured position as an associate professor of education at Louisiana State University. FIRE is subsidizing her suit against the university, filed in January.
Ms. Buchanan, who had taught at L.S.U. for two decades, had been approved for promotion to full professor. But several students complained that she had an abrasive and disparaging style, used profanity and sexual slang in the classroom, and made off-color jokes — one, about how quality of sex gets worse the longer the relationship.
Ms. Buchanan described herself as blunt, and called her language and humor a “pedagogical strategy” to toughen up future teachers for work in communities where such language and hostile interactions are common. But L.S.U. fired her, saying she had violated its sexual harassment policy, though students had not accused her of that. The university, citing Department of Education advisements regarding Title IX, maintains it is following the law.
Ms. Buchanan’s suit cites violations of freedom of speech rights and due process. But her case, said Robert Corn-Revere, a high-profile lawyer who works with FIRE’s litigation program, is also about “the bigger picture — the widespread use of Title IX to violate First Amendment rights.”
Title IX prohibits discrimination based on sex in federally funded educational programs. In the last five years, as the government has worked to crack down on sexual assault on campus, it has broadened the definition of sexual harassment to “any unwelcome conduct of a sexual nature” and eliminated a protection that such conduct had to be offensive to a reasonable person.
In April, the Justice Department cemented the definition in a letter to the University of New Mexico, which was under investigation for Title IX violations, said Will Creeley, FIRE vice president of legal and public advocacy. The letter, which faults the university for lacking proper channels to report sexual harassment and sexual assault, could have significant implications: It makes clear that any complaint of a sexual nature — say, someone finds offense in an overheard Amy Schumer joke — must be investigated even if no one claims it created a “hostile environment,” a threshold set by the Supreme Court. This “invites censorship,” Mr. Creeley said.
The University of New Mexico president, Robert G. Frank, agreed that universities had a responsibility to maintain an atmosphere free of verbal sexual harassment. But the federal government, he said in an email, “offers no specific guidance” on how to do that “in the real world without infringing on free speech,” especially at universities where “the exchange of controversial or sensitive ideas is woven into the fabric of academe.”
Universities investigated for violations of Title IX, or those that do not adequately investigate charges of sexual assault or harassment, face lengthy and expensive investigations — 246 cases are currently under investigation at 195 campuses. Those found guilty, public or private, could lose federal funding.
Understanding Title IX, Mr. Lukianoff said, “is not sexy and it’s complicated, but it is the secret engine as to why universities overreact” in creating and enforcing speech codes and in charges of harassment or sexual assault. “When people say, ‘Look how crazy our universities have gotten,’ they need to understand that they are being pushed with a very scary threat,” he said. “They’re not just scared of loss of funding. They’re scared of the investigations.” Colleges and universities, he said, are being “asked to do the impossible.”
There are other groups that fight for First Amendment rights on campus, but none as vocal — or pushy — as FIRE, which has gone public with 421 interventions on behalf of aggrieved students and faculty members over almost two decades (many more have been resolved privately).
The organization, which has headquarters in Philadelphia across the street from Independence Hall, has nearly doubled its staff, to 35, in the last two years. In 2015, FIRE received 807 inquiries from students and professors seeking assistance in fighting perceived civil rights violations, up from 719 in 2014. About 50 will fit FIRE’s “narrow focus” on civil liberties defense, said Peter Bonilla, director of its individual rights defense program. The most egregious get litigated through FIRE’s two-year-old litigation program, which targets violations at public colleges (only public institutions, which are arms of the government, are directly bound by the First Amendment).
A lawsuit is FIRE’s tactic of last resort, especially when it comes to speech codes. In about 90 percent of cases, it uses “persuasion,” as staff members call it, to get administrators to revise or revoke questionable parts of a code. Depending on the level of “obstinacy,” Mr. Bonilla said, “the levers of publicity” — news releases, op-eds, media appearances — kick in. Most administrators, wary of bad press or an expensive suit, eliminate the speech codes.
As Mr. Lukianoff likes to note, FIRE has not lost a speech-code legal challenge yet. (He recounts many of them in his 2014 book, “Unlearning Liberty: Campus Censorship and the End of American Debate.”)
The group also works proactively with campuses. Its Policy Reform Project has a database of conduct guidelines from 440 four-year institutions, and it publishes a ranking of schools based on them. FIRE has slowly encouraged many on the list to rewrite their rules. In 2007, 75 percent had at least one policy restricting speech. Last year, that was down to 49 percent.
“I admire FIRE enormously,” said Harvey Klehr, a professor of politics and history at Emory University who took an unpopular position last spring against student protesters who said they felt threatened by pro-Trump slogans chalked around campus. “Far too many universities persist in having speech codes,” he said. “It’s very important work calling them into account.”
But FIRE’s strategies have not endeared it to many campus officials.
Martha Compton, director of community standards and student responsibility at Ohio University, said administrators are often “put off by FIRE’s heavy-handedness.” Ms. Compton was named in a suit charging that administrators ordered a student group to remove T-shirts bearing the double entendre “We Get You Off for Free” (the group defends students in campus disciplinary actions). She says they never told students not to wear the shirts. The university settled for $32,000.
When FIRE got involved, she said, things escalated. She found out about the suit in a Twitter post from FIRE. “From FIRE’s standpoint, they do what they need to get institutions to respond,” she said, “but there’s often a cost”: Administrators who might reach out for guidance on free speech matters do not, afraid “they may open themselves up for a suit or public humiliation.”
Critics also charge that FIRE draws attention from real problems, including sexual assault or racism, by filtering them through the First Amendment lens and inserting itself into campus politics to serve its own agenda.
They point to Mr. Lukianoff’s involvement in the Yale shout-down. He was on campus that day last November because he was invited by Nicholas Christakis and his wife, Erika, to speak at Silliman College, a campus residence where the Christakises were “co-masters.” Ms. Christakis had sent an email to Silliman students in response to a directive from Yale’s Intercultural Affairs Committee advising students to avoid culturally insensitive Halloween costumes. Ms. Christakis reminded students that they were autonomous and mature, and to reflect on the consequences of an institutional “exercise of implied control over college students.”
The email did not play well, especially with minority students who read it as further evidence that faculty and staff were insensitive to the challenges they face on campus. For about an hour, students surrounded and disparaged Mr. Christakis. One shouted that he was “disgusting.”
As seen in Mr. Lukianoff’s video, the students had no interest in hearing Mr. Christakis’s entreaty for an open forum and, almost threateningly, shut down his right to speak. But there are plenty at Yale who believe the video narrowly and unfairly depicted the event to fit a narrative of so-called crybullies whining to be protected at the expense of others’ rights.
The video was “tremendously effective, but cruelly so,” said Jim Sleeper, a lecturer in political science at Yale and a vocal critic of FIRE. Matthew Frye Jacobson, a professor of American studies, history and African-American studies at Yale, said that FIRE’s spin, and the subsequent storm of media coverage, was “a complete misconstruction of what happened.”
“The cultural affairs committee made its statement about Halloween costumes,” he said. “The Christakises critiqued that; the students critiqued them. Then everyone in the world criticized the students. From beginning to end, it was never a matter of free speech.”
That argument, Mr. Lukianoff said, “lacks intellectual honesty.”
Still, the incident reverberated in ways FIRE probably did not intend. At a campus conference the next day, Mr. Lukianoff was tripped up by his own free speech in remarks about Erika Christakis’s email. Describing the firestorm, he said, “You would think that given the reaction to what she had written that she had actually wiped out an Indian village.” Protests followed.
Katie McCleary, a Little Shell Chippewa student raised on the Crow Reservation in Montana, is a Yale junior who was active in the protests. “I would not seek out FIRE even though they say they are founded for reasons of defending students who feel their voice is lost,” she said. “It seems like a specific kind of lost voice that they are interested in. It’s usually a voice that’s racist and says things that are immoral. I’d rather speak for myself.”
Like many American colleges and universities, Yale is working to create a diverse student body but struggling to provide sufficient support for the minority students it recruits. Those students are now speaking up loudly and in sometimes unpleasant ways because, as Ms. McCleary indicates, they believe their “speech” is too rarefied and angry to be heard and defended, even by a First Amendment group like FIRE.
Mr. Silverglate, who made his reputation defending radicals and protesters since the Vietnam War, objects: “Communists, labor organizers, war protesters — they are the people responsible for the majority of great First Amendment law. We don’t care what you say. If you are penalized for it, we’re there.”
An article on Page 20 this weekend about the Foundation for Individual Rights in Education misstates the professional status of Alan Kors, a co-founder. He is on leave from the University of Pennsylvania; he has not retired.
An earlier version of a picture caption with this article misspelled the surname of the communications director. He is Nico Perrino, not Perrin.
Correction: August 21, 2016
An article on Aug. 7 about free speech on campuses misstated a response to a survey question about the right to peaceable assembly. The survey showed that 60 percent of black students saw the right as threatened, not as a threat. The article also referred incompletely to how the government broadened the definition of sexual harassment. It was to “any unwelcome conduct of a sexual nature,” not to “unwelcome conduct of a sexual nature,” which was the earlier definition.