The guarantees of the First Amendment generally do not apply to students at private schools, since the First Amendment regulates only government — not private — conduct. However, the vast majority of private universities make extensive promises of free speech and academic freedom, presumably to lure the most talented students and faculty, and to reassure them that they can engage in truly open inquiry once they are part of the campus community.
For example, Princeton University advertises that “free inquiry and free expression within the academic community” are “indispensable” to the achievement of Princeton’s goals. Boston University, meanwhile, promises the right “to teach and to learn in an atmosphere of unfettered free inquiry and exposition.” Yet both of these universities prohibit a great deal of speech that would be protected by the First Amendment, including speech that “demeans” others’ “beliefs.”
So if they are clearly unlawful at public colleges and contrary to the mission of private colleges, why are speech codes so hardy? Undeniably, a powerful PC climate, particularly with regard to race and religious issues, remains on campus, as well as a tenacious belief that some students and administrators have a right not to be offended. What is less well known, however, is that speech codes are maintained by schools in no small part due to a deeply held fear of civil liability for harassment lawsuits arising from Title IX of the Education Amendments of 1972. Title IX prohibits discrimination — including sexual harassment — in any education program receiving federal funding. Plaintiffs in meritorious sexual-harassment lawsuits stand to win large damage awards, and the sheer number of those suits has become quite significant. Even when the claim is truly frivolous, the cost of mounting a defense is substantial.
In an attempt to prevent these claims, educational institutions have adopted a corporate risk-management posture. In the private corporate world, where the First Amendment is inapplicable, the response to the explosion of sexual-harassment-litigation has been to adopt policies that dramatically expand the definition of harassment, and to handle such charges in-house, in an attempt to pre-empt harassment lawsuits. While there is nothing in sexual-harassment law that prohibits “offensive” speech without reference to its severity or pervasiveness, corporate policies routinely prohibit any kind of subjectively “offensive” interaction and encourage the reporting of such interactions to higher management.
Paranoia about sexual-harassment liability on campus has been on the rise for years. In deciding between the fear of harassment lawsuits, which are comparatively common and expensive, and passing speech codes, legal challenges to which are comparatively rare and inexpensive, speech is too often the loser.
Through the looking glass
NO LAUGHING MATTER: Thanks to campus monitoring of social networking sites, an old battle is heating up again. Above, students at Johns Hopkins defend Parks’s freedom of speech; below, the NAACP and the Black Student Union press for disciplinary action. (Potos from the Johns Hopkins newsletter; top by Shiv Gandhi, bottom by Laura Bitner.)
In light of this shameful tradition of controlling and limiting student speech on college campuses, we should not be surprised that social-networking sites like MySpace and Facebook — which greatly increase the visibility of once-private student interaction — send university administrators into a blind panic. And if, in light of that, increased administrative online monitoring seems inevitable, it is all the more so given that fellow students survey these sites, too, and report their findings.
Even unaffiliated gadflies can get in on the act. Badjocks.com, a popular Web site that reports instances of student-athlete misconduct, has achieved national prominence by combing through student athletes’ Internet profiles in search of pictures of “jocks behaving badly,” often with terrible results for both the athletes and their schools’ athletic departments. For a generation that has been keeping journals and posting photos of themselves online since they were in elementary school, it is simply too easy to play “gotcha!” with the online “paper trails” left by students, and too many administrators seem willing to respond with heavy hands.