Annual FIRE Survey Finds Improvement in College Free Speech Policies

• By Dian Schaffhauser
• 12/14/16

A new report out from the Foundation for Individual Rights in Education (FIRE) has issued red lights to 40 percent of institutions of higher education for their "severely restrictive" written policies on free speech. Still, that's an improvement over last year, when the count was 49 percent. The latest results reveal a continuation of the decline that has been occurring over the last nine years.

FIRE calls itself a "nonpartisan, nonprofit organization dedicated to defending liberty, freedom of speech, due process, academic freedom, legal equality and freedom of conscience on America's college campuses." Each year, the organization examines speech codes among public and private colleges and universities and issues each a green light, yellow light or red light based on how much protected speech their written policies restrict.

A red light goes to a school that has at least one policy restricting freedom of speech or that places its speech policies behind a registration wall, limiting public access.

A yellow light is given to an institution with policies that could be interpreted to suppress protected speech or policies that restrict narrow categories of speech. For instance, a ban on "verbal abuse" could be construed as a threat to free speech, but it could also refer to unprotected speech, such as a threat of violence or "genuine harassment." A policy that bans posters promoting alcohol consumption, on the other hand, is considered a restriction on speech, but is "relatively limited in scope." Fire noted that yellow light policies are typically unconstitutional.

A green light designation is issued to colleges with policies that don't "seriously threaten campus expression." However, FIRE added, the rating only applies to written policies on campus; it says nothing about how well the school might "actively support" free speech.

This year's survey of speech policies encompassed 449 schools. Among those, 27 schools earned a green light rating from FIRE, up from 22 last year. Yellow lights were issued to 53 percent of institutions.

Public universities, in particular, were highlighted for the dramatic drop they have experienced in red light ratings. Nine years ago, the organization stated, 79 percent of public institutions were given red lights; this year only 34 percent received them. According to FIRE, the change can be tied directly to a letter sent to the heads of many of those institutions in 2015 by the chairman of the U.S. House Judiciary Committee, Representative Bob Goodlatte (R-VA), asking why they supported "speech-restrictive policies" and encouraging them to bring those policies "into accordance with the First Amendment."

Among private colleges, which aren't "legally bound by the First Amendment," FIRE said, the proportion of schools earning a red light rating was 59 percent this year, down from 61 percent in 2015.

Although the numbers are trending in the right way, FIRE reported that it is increasingly concerned about several areas, starting with "bias reporting systems," which the organization said were "proliferating" on campus. These are described in the report as "Orwellian programs under which students are asked to report on one another for offensive speech." Other topics of concern: burgeoning demand by students for censorship and an all-encompassing definition of sexual harassment by the federal government that is overly broad.

"The precipitous decline in restrictive speech codes means thousands of current and future students and faculty members will not be subject to policies that clearly violate their basic rights," said FIRE Vice President of Policy Research, Samantha Harris, in a prepared statement. "Over the past year, FIRE used all the resources at our disposal to achieve this result. We've worked collaboratively with college administrators and even members of Congress to reform policies and litigated against speech codes when necessary. FIRE will continue our reform efforts until the last speech code is eliminated."

The full report is available on the FIRE website here. A database of speech codes by institution is available here.

In addition, FIRE recently released a new Chrome extension that displays a school's FIRE speech code rating each time its website is brought up in the browser, available here.