Spotlight on Speech Codes 2019

1. The percentage of schools earning an overall “red light” rating in FIRE's Spotlight database has gone down for the eleventh year in a row, this year to 28.5 percent. This is a nearly four percentage point drop from last year, and is over 45 percentage points lower than the percentage of red light institutions in FIRE’s 2009 report.
2. The percentage of private universities earning a red light rating went below 50 percent for the first time ever this year, coming in at 47.1 percent.
3. 61.2 percent of institutions now earn an overall “yellow light” rating. Though less restrictive than red light policies, yellow light policies restrict expression that is protected under First Amendment standards, and invite administrative abuse.
4. 42 institutions earn FIRE’s overall “green light” rating, up from 35 schools from last year’s report. (Since this year's report was written, three more universities have earned green light status, bringing the total to 45.) Policies earn a green light rating when they do not seriously threaten protected expression. Only eight institutions earned a green light rating in FIRE’s 2009 report.
5. Approximately ten percent of institutions surveyed maintain “free speech zone” policies, which limit student demonstrations and other expressive activities to small and/or out-of-the-way areas on campus.
6. More than 50 university administrations or faculty bodies have now adopted policy statements in support of free speech modeled after the “Report of the Committee on Freedom of Expression” at the University of Chicago (the “Chicago Statement”), released in January 2015. There were 17 such adoptions in the year 2018 alone (since this year's report was written, three additional schools joined the list).

Most college students in the United States should be able to expect that freedom of expression will be upheld on their campuses. After all, public institutions are legally bound by the First Amendment, and the vast majority of private colleges and universities promise their students commensurate free speech rights.

In spite of this legal landscape, far too many colleges across the country fail to live up to their free speech obligations in policy and in practice. Often, this occurs through the implementation of speech codes: university policies that restrict expression that is protected under First Amendment standards.

For this report, FIRE surveyed the written policies of 466 colleges and universities, evaluating their compliance with First Amendment standards. Overall, 28.5% of surveyed colleges maintain at least one severely restrictive policy that earns FIRE’s worst, “red light” rating, meaning that it both clearly and substantially restricts protected speech. This is the eleventh year in a row that the percentage of schools earning a red light has gone down; last year, 32.3% of schools earned a red light rating.

The majority of institutions surveyed (61.2%) earn an overall “yellow light” rating, meaning they maintain at least one yellow light rated policy. Yellow light policies are either clear restrictions on a more narrow area of expression, or policies that, by virtue of vague wording, could too easily be applied to restrict protected expression. While the continued decline in red light institutions is cause for optimism, we will continue to work with colleges and universities to ensure that yellow light institutions improve all the way to earn FIRE’s highest, “green light” rating, meaning that none of their written policies seriously imperil protected expression. A total of 42 colleges and universities (9% of those surveyed) now earn an overall green light rating, up from 35 schools as of last year’s report.

In further good news, more and more colleges and universities continue to adopt policy statements in support of free speech modeled after the one adopted by the University of Chicago in January 2015. As of this writing, 50 schools or faculty bodies have endorsed a version of the free speech policy statement known as the “Chicago Statement,” with 14 adoptions in 2018 alone.

Though these improvements in policy are heartening, free speech on campus remains under threat. Demands for censorship of student and faculty speech—whether originating on or off campus—are common, and universities continue to investigate and punish students and faculty over protected expression.

FIRE surveyed publicly available policies at 362 four-year public institutions and 104 of the nation’s most prestigious private institutions. Our research focuses in particular on public universities because, as explained in detail below, public universities are legally bound to protect students’ right to free speech and can be successfully sued in court when they do not.

FIRE rates colleges and universities as “red light,” “yellow light,” or “green light” institutions based on how much, if any, protected expression their written policies restrict. FIRE defines these terms as follows:

 

 

Red Light: A red light institution is one that has at least one policy both clearly and substantially restricting freedom of speech, or that bars public access to its speech-related policies by requiring a university login and password for access.

A “clear” restriction is one that unambiguously infringes on protected expression. In other words, the threat to free speech at a red light institution is obvious on the face of the policy and does not depend on how the policy is applied. A “substantial” restriction on free speech is one that is broadly applicable to campus expression. For example, a ban on “offensive speech” would be a clear violation (in that it is unambiguous) as well as a substantial violation (in that it covers a great deal of what is protected under First Amendment standards). Such a policy would earn a university a red light.

When a university restricts access to its speech-related policies by requiring a login and password, it denies prospective students and their parents the ability to weigh this crucial information prior to matriculation. At FIRE, we consider this denial to be so deceptive and serious that it alone warrants an overall red light rating.

Yellow Light: A yellow light institution maintains policies that could be interpreted to suppress protected speech or policies that, while clearly restricting freedom of speech, restrict relatively narrow categories of speech.

For example, a policy banning “verbal abuse” has broad applicability and poses a substantial threat to free speech, but it is not a clear violation because “abuse” might refer to unprotected speech and conduct, such as threats of violence or unlawful harassment. Similarly, while a policy banning “profanity on residence hall door whiteboards” clearly restricts speech, it is relatively limited in scope. Yellow light policies are typically unconstitutional,[1] and a rating of yellow light rather than red light in no way means that FIRE condones a university’s restrictions on speech. Rather, it means that in FIRE’s judgment, those restrictions do not clearly and substantially restrict speech in the manner necessary to warrant a red light rating.

Green Light: If FIRE finds that a university’s policies do not seriously threaten campus expression, that college or university receives a green light rating. A green light rating does not necessarily indicate that a school actively supports free expression in practice; it simply means that the school’s written policies do not pose a serious threat to free speech.

Warning: FIRE believes that free speech is not only a moral imperative, but also an essential element of a college education. However, private universities, as private associations, possess their own right to free association, which allows them to prioritize other values above the right to free speech if they wish to do so. Therefore, when a private university clearly and consistently states that it holds a certain set of values above a commitment to freedom of speech, FIRE warns prospective students and faculty members of this fact.[2] Six schools surveyed for this report meet these criteria.[3]

Of the 466 schools reviewed by FIRE, 133, or 28.5%, received a red light rating. 285 schools received a yellow light rating (61.2%), and 42 received a green light rating (9%). Six schools earned a Warning rating (1.5%).[4]

This marks the eleventh year in a row that the percentage of universities with an overall red light rating has fallen, this year from 32.3% to 28.5%. The continued reduction in red light institutions is encouraging: In the ten years since our 2009 report, red light schools have declined by nearly fifty percentage points.[5]

However, this year’s numbers also reveal an increase in yellow light institutions, as 58.6% of public schools earned an overall yellow light last year. While yellow light policies do not impose the sort of clear and substantial restrictions that red light policies present, they are nonetheless impermissible restrictions on expression. Yellow light institutions must not allow their place among the majority of schools to breed complacency; throughout the past few decades, courts have routinely struck down university policies that would earn a yellow light rating. Instead, these policies must be revised to meet First Amendment standards and to earn a green light rating.

The number of green light institutions has continued to increase this year, going from 35 institutions last year to 42.[6] In total, 29 schools improved their overall ratings this year.[7]

Public Colleges and Universities

The percentage of public schools with a red light rating dropped again this year, from 26% last year to 23.2% this year. Overall, of the 362 public universities reviewed for this report, 84 received a red light rating (23.2%), 242 received a yellow light rating (66.9%), and 36 received a green light rating (9.9%).

This year, FIRE was pleased to welcome the University of California, Los Angeles to the list of green light institutions. UCLA is the first public school in California, as well as the first member institution of the University of California system, to earn an overall green light rating. In the past, the presence of one green light institution in a state system of colleges has been helpful in encouraging policy reform on the part of other member institutions; for example, the Purdue University system boasts three green light schools, the University of North Carolina System includes seven green light schools, and, as of this year, the University System of New Hampshire now has three institutions on the green light list. It is our hope that University of California system schools may similarly be encouraged to follow in the footsteps of UCLA to a green light rating.

With continued efforts by free speech advocates on and off campus, we expect the numbers of both red light and yellow light institutions to decrease, and for more schools across the country to earn FIRE’s green light rating in the coming year.

Private Colleges and Universities

Of the 104 private colleges and universities reviewed, 49 (47.1%) received a red light rating. 43 (41.3%) received a yellow light rating, 6 (5.8%) received a green light rating, and 6 (5.8%) earned a Warning rating.

The percentage of private universities earning a red light rating, which stood at 53.9% last year, went below 50% for the first time ever this year, coming in at 47.1%. This progress is significant, given that private universities are not legally bound by the First Amendment, which regulates government actors. For this reason, it is gratifying that these colleges are closer to fulfilling their institutional commitments to free expression. Moreover, two private institutions—Emory University and Claremont McKenna College—earned overall green light ratings this past year.

Speech Codes on Campus: Background and Legal Challenges

Speech codes—university regulations prohibiting expression that would be constitutionally protected in society at large—gained popularity with college administrators in the 1980s and 1990s. As discriminatory barriers to education declined, female and minority enrollment increased. Concerned that these changes would cause tension and that students who finally had full educational access would arrive at institutions only to be offended by other students, college administrators enacted speech codes.

In the mid-1990s, the phenomenon of campus speech codes converged with the expansion of Title IX, the federal law prohibiting sex discrimination in educational institutions receiving federal funds.[8] Under the guise of the obligation to prohibit discriminatory harassment, unconstitutionally overbroad harassment policies banning subjectively offensive conduct proliferated.

In enacting speech codes, administrators ignored or did not fully consider the philosophical, social, and legal ramifications of placing restrictions on speech, particularly at public universities. As a result, federal courts have overturned speech codes at numerous colleges and universities over the past three decades.[9]

Despite the overwhelming weight of legal authority against speech codes, a large number of institutions—including some of those that have been successfully sued on First Amendment grounds—still maintain unconstitutional speech codes. It is with this unfortunate fact in mind that we turn to a more detailed discussion of the ways in which campus speech codes violate individual rights and what can be done to challenge them.

Public Universities vs. Private Universities

With limited, narrowly defined exceptions, the First Amendment prohibits the government—including governmental entities such as state universities—from restricting freedom of speech. A good rule of thumb is that if a state law would be declared unconstitutional for violating the First Amendment, a similar regulation at a state college or university is likewise unconstitutional.

The guarantees of the First Amendment generally do not apply to students at private colleges because the First Amendment regulates only government conduct.[10] Moreover, although acceptance of federal funding does confer some obligations upon private colleges (such as compliance with federal anti-discrimination laws), compliance with the First Amendment is not one of them.

This does not mean, however, that students and faculty at all private schools are not entitled to free expression. In fact, most private universities explicitly promise freedom of speech and academic freedom in their official policy materials. Lehigh University, for example, promises students “[f]ree inquiry and free speech and expression, including the right to open dissent.”[11] Similarly, according to Middlebury College’s student handbook, students “are free to examine and discuss all questions of interest to them and to express opinions publicly and privately.”[12] Yet both of these institutions, along with most other private colleges and universities, maintain policies that prohibit the very speech they promise to protect.

This year, more colleges than ever before, including private institutions, have adopted policy statements in support of free speech modeled after the one produced in January 2015 by the Committee on Freedom of Expression at the University of Chicago.[13] This trend is explored in further detail in this report’s “Spotlight On: The Chicago Statement” feature.

What Exactly Is “Free Speech,” And How Do Universities Curtail It?

What does FIRE mean when we say that a university restricts “free speech”? Do people have the right to say absolutely anything, or are certain types of expression unprotected?

Simply put, the overwhelming majority of speech is protected by the First Amendment. Over the years, the Supreme Court has carved out a limited number of narrow exceptions to the First Amendment, including speech that incites reasonable people to immediate violence; so-called “fighting words” (face-to-face confrontations that lead to physical altercations); harassment; true threats and intimidation; obscenity; and defamation. If the speech in question does not fall within one of these exceptions, it most likely is protected speech.

The exceptions are often misapplied and abused by universities to punish constitutionally protected speech. There are instances where the written policy at issue may be constitutional—for example, a prohibition on “incitement”—but its application may not be. In other instances, a written policy will purport to be a legitimate ban on a category of unprotected speech like harassment or true threats, but (either deliberately or through poor drafting) will encompass protected speech as well. Therefore, it is important to understand what these narrow exceptions to free speech actually mean in order to recognize when they are being misapplied.

Threats and Intimidation

The Supreme Court has defined “true threats” as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Virginia v. Black, 538 U.S. 343, 359 (2003). The Court also has defined “intimidation,” of the type not protected by the First Amendment, as a “type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Id. at 360. Neither term would encompass, for example, a vaguely worded statement that is not directed at anyone in particular.

Nevertheless, universities frequently misapply policies prohibiting threats and intimidation so as to infringe on protected speech.

In August 2018, for example, Long Island University Post administrators called a student to a mandatory meeting to question him about “concerns” they had over his criticism of the Greek life system, a paper he had written the previous year about terrorism, and photos on his personal Facebook account showing his participation in a recreational firearms event hosted by a sporting goods store.

In a letter to the university, FIRE reviewed the definition of a true threat and wrote:

If LIU Post considers academic writings about the morality of violence against government actors and a photo of a person holding a gun to be “threats,” it will have abandoned any understanding of the term.

…

LIU Post’s insistence on a formal meeting to question [student Anand] Venigalla about the purpose and meaning of tepid expression utterly devoid of threats not only has a chilling effect on Venigalla in particular, but sends a message to all students that their expression, if it offends others, could subject them to official investigation and questioning. As a result, students will likely refrain from speaking rather than risk investigation or discipline—the very definition of the impermissible chilling effect on protected speech. Indeed, Venigalla has expressed to FIRE that the meeting gave him the impression that, going forward, he must be careful about what he says.

We do not mean to suggest that LIU Post must ignore true threats or statements implying the possibility of harm. However, without more, students cannot be summoned for questioning every time they post a photo of themselves engaging in recreational firearm use.[14]

The controversy at LIU Post is just one example of a common misapplication of the legal standards for threats and intimidation, in which universities cite generalized concerns about safety with no regard to the boundaries of protected speech. Instead, universities must revise policies so that they track these legal standards, and enforce the policies accordingly.

Incitement

There is also a propensity among universities to restrict speech that offends other students on the basis that it constitutes “incitement.” The basic concept, as administrators too often see it, is that offensive or provocative speech will anger those who disagree with it, perhaps so much so that it moves them to violence. While preventing violence is necessary, this is an impermissible misapplication of the incitement doctrine.

Incitement, in the legal sense, does not refer to speech that may lead to violence on the part of those opposed to or angered by it, but rather to speech that will lead those who agree with it to commit immediate violence. In other words, the danger is that certain speech will convince sympathetic, willing listeners to take immediate unlawful action.

The paradigmatic example of incitement is a person standing on the steps of a courthouse in front of a torch-wielding mob and urging that mob to burn down the courthouse immediately. To misapply the doctrine to encompass an opposing party’s reaction to speech they dislike is to convert the doctrine into an impermissible “heckler’s veto,” where violence threatened by those angry about particular speech is used as a reason to censor that speech. As the Supreme Court has said, speech cannot be prohibited because it “might offend a hostile mob” or because it may prove “unpopular with bottle throwers.”[15]

The legal standard for incitement was announced in the Supreme Court’s decision in Brandenburg v. Ohio, 395 U.S. 444 (1969). There, the Court held that the state may not “forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447 (emphasis in original). This is an exacting standard, as evidenced by its application in subsequent cases.

For instance, in Hess v. Indiana, 414 U.S. 105 (1973), the Supreme Court held that a man who had loudly stated, “We’ll take the fucking street later” during an anti-war demonstration did not intend to incite or produce immediate lawless action. The Court found that “at worst, it amounted to nothing more than advocacy of illegal action at some indefinite future time,” and that the man was therefore not guilty under a state disorderly conduct statute. Id. at 108–09. The fact that the Court ruled in favor of the speaker despite the use of such strong and unequivocal language underscores the narrow construction that has traditionally been given to the incitement doctrine, and its dual requirements of likelihood and immediacy. Nonetheless, college administrations have been all too willing to abuse or ignore this jurisprudence.

Obscenity

The Supreme Court has held that obscene expression, to fall outside of the protection of the First Amendment, must “depict or describe sexual conduct” and must be “limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973).

This is a narrow definition applicable only to some highly graphic sexual material. It does not encompass profanity, even though profane words are often colloquially referred to as “obscenities.” In fact, the Supreme Court has explicitly held that profanity is constitutionally protected. In Cohen v. California, 403 U.S. 15 (1971), the defendant, Paul Robert Cohen, was convicted in California for wearing a jacket bearing the words “Fuck the Draft” in a courthouse. The Supreme Court overturned Cohen’s conviction, holding that the message on his jacket, however vulgar, was protected speech.

Similarly, in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667 (1973), the Court determined that a student newspaper article entitled “Motherfucker Acquitted” was constitutionally protected speech. The Court wrote that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Id. at 670.

Nonetheless, many colleges erroneously believe that they may lawfully prohibit profanity and vulgar expression. For example:

• Lake Superior State University states in its student handbook that materials deemed “vulgar” will not be approved for posting on campus.[16]
• Alabama A&M University prohibits students from “[h]arassing” others by sending “profane” messages while using university computing resources.[17]
• Texas Tech University bans the use of “obscenities” while engaged in expressive activities.[18]

Harassment

Hostile environment harassment, properly defined, is not protected by the First Amendment. In the educational context, the Supreme Court has defined student-on-student harassment as discriminatory, unwelcome conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). This is not simply expression; it is conduct far beyond the protected expressive activities that are too often deemed “harassment” on today’s college campus. Harassment is extreme and usually repetitive behavior—behavior so serious that it would interfere with a reasonable person’s ability to receive his or her education. For example, in Davis, the conduct found by the Court to be harassment was a months-long pattern of conduct including repeated attempts to touch the victim’s breasts and genitals, together with repeated sexually explicit comments directed at and about the victim.

For decades now, however, many colleges and universities have maintained policies defining harassment too broadly and prohibiting constitutionally protected speech. And years of Title IX enforcement by the Department of Education’s Office for Civil Rights (OCR) that neglected to fully protect First Amendment rights, including an unconstitutionally broad definition of sexual harassment promulgated by OCR,[19] led numerous colleges and universities to enact overly restrictive harassment policies in an effort to avoid an OCR investigation. It will likely take a great deal of time and effort by free speech advocates to undo this damage.

Here are just a few examples of overly broad sexual harassment policies based on OCR’s definition:

• The University of Texas at Austin defines sexual harassment as “[u]nwelcome conduct of a sexual nature.”[20]
• At the University of Rhode Island, “Sexual Harassment is any unwelcome conduct of a sexual nature.”[21]
• Pennsylvania State University’s policy states: “Sexual Harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwanted, inappropriate, or unconsented to.”[22]

These examples, along with many others, demonstrate that colleges and universities often fail to limit themselves to the narrow definition of harassment that is outside the realm of constitutional protection. Instead, they expand the term to prohibit broad categories of speech that do not even approach actionable harassment, despite similar policies having been struck down by federal courts years earlier.[23]

Having discussed the most common ways in which universities misuse the narrow exceptions to the First Amendment to prohibit protected expression, we now turn to the innumerable other types of university regulations that restrict free speech on their face. Such restrictions are generally found in several distinct types of policies.

Anti-Bullying Policies

Over the past decade, FIRE has found that more and more colleges and universities have adopted policies on “bullying” and “cyberbullying.” On October 26, 2010, OCR issued a letter on the topic of bullying, reminding educational institutions that they must address actionable harassment, but also acknowledging that “[s]ome conduct alleged to be harassment may implicate the First Amendment rights to free speech or expression.”[24] For such situations, OCR’s letter refers readers back to the 2003 “Dear Colleague” letter stating that harassment is conduct that goes far beyond merely offensive speech and expression. However, because it is primarily focused on bullying in the K–12 setting, the letter also urges an in loco parentis[25] approach that is inappropriate in the college setting, where students are overwhelmingly adults.[26]

Court decisions and other guidance regarding K–12 speech have a way of “trickling up” to the collegiate setting, and indeed, FIRE has come across numerous university policies prohibiting bullying in a problematic manner. For example:

• Union College defines bullying as: “The aggressive and hostile acts of an individual or group of individuals which are intended to humiliate, mentally, or physically injure or intimidate, and/or control another individual or group of individuals.”[27]
• Idaho State University’s policy states that bullying includes “insults, offensive remarks,” and “harsh practical jokes.”[28]
• At Kentucky State University, “[t]exting or emailing insults or rumors” and “[p]osting derogatory comments” are considered cyberbullying.[29]

But as courts have held in rulings spanning decades, speech cannot be prohibited simply because someone else finds it offensive, even deeply so.[30] Offensive speech, if it does not rise to the level of harassment or one of the other narrow categories of unprotected speech and conduct, is entitled to constitutional protection (and, accordingly, to protection at private institutions that claim to uphold the right to free speech).

Policies on Tolerance, Respect, and Civility

Many schools invoke laudable goals like respect and civility to justify policies that violate students’ and faculty members’ free speech rights. While a university has every right to promote a tolerant and respectful atmosphere on campus, a university that claims to respect free speech must not limit discourse to only the inoffensive and respectful. And although pleas for civility and respect are often initially framed as requests, many schools have speech codes that effectively turn those requests into requirements.

For example:

• Students at Evergreen State College are informed: “Civility is not just a word; it must be present in all our interactions.”[31]
• Georgetown University prohibits “[e]ngaging in behavior, either through language or actions, which disrespects another individual.[32]
• Johns Hopkins University states that “[r]ude, disrespectful behavior is unwelcome and will not be tolerated.”[33]

While respect and civility may seem uncontroversial, most uncivil or disrespectful speech is protected by the First Amendment,[34] and is indeed sometimes of great political and social significance. Some of the expression employed in the civil rights movement of the 1950s and 60s, for example, would violate campus civility codes today. Colleges and universities may encourage civility, but public universities—and those private universities that purport to respect students’ fundamental free speech rights—may not require it or threaten mere incivility with disciplinary action.

Internet Usage Policies

University policies regulating online expression, while perhaps appearing to be narrow, can have a significant impact on students’ and faculty members’ free speech rights.

Examples of impermissibly restrictive Internet usage policies include the following:

• At Macalester College, students are told to refrain from posting material that is deemed to be “racially, sexually, ethnically or religiously objectionable.”[35]
• Boston University students are prohibited from sending “offensive” or “annoying” materials via university networks.[36]
• Tulane University forces students to agree to communicate only in ways that are “kind and respectful,” and bans messages that are “rude.”[37]

Policies on Bias and Hate Speech

In recent years, colleges and universities around the country have instituted policies and procedures specifically aimed at eliminating “bias” and “hate speech” on campus.[38] These sets of policies and procedures, frequently termed “Bias Reporting Protocols” or “Bias Incident Protocols,” often include bans on protected expression. For example:

• At Bates College, a bias incident is defined as “any event of intolerance or prejudice” intended to “offend … another because of the other’s race, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age or physical or mental disability.”[39]
• Clark University’s student handbook explains that bias incidents involve “treating someone negatively” based on a particular characteristic, including “telling jokes based on a stereotype” and “name-calling.”[40]
• At Grinnell College, a bias-motivated incident is merely “an expression of hostility” toward a person of a particular characteristic.[41]

While speech or expression that is based on a speaker’s prejudice may be subjectively offensive, it is nonetheless protected unless it rises to the level of harassment, true threats, or other unprotected speech.

Bias incident protocols often also infringe on students’ right to due process, allowing for anonymous reporting that denies students the right to confront their accusers. Moreover, universities are often heavily invested in these bias incident policies, having set up extensive regulatory frameworks and response protocols devoted solely to addressing them.

While many bias incident protocols do not include a separate enforcement mechanism, the mere threat of a bias investigation will likely be sufficient to chill speech on controversial issues. When the only conduct at issue is constitutionally protected speech, even investigation is inappropriate.

Policies Governing Speakers, Demonstrations, and Rallies

Universities have a right to enact reasonable, narrowly tailored “time, place, and manner” restrictions that prevent demonstrations and other expressive activities from unduly interfering with the educational process.[42] They may not, however, regulate speakers and demonstrations on the basis of content or viewpoint, nor may they maintain regulations that burden substantially more speech than is necessary to maintain an environment conducive to education. Such regulations can take several forms, as discussed in the sections below.

Security Fee Policies

In recent years, FIRE has seen a number of colleges and universities hamper—whether intentionally or just through a misunderstanding of the law—the invitation of controversial campus speakers by levying additional security costs on the sponsoring student organizations.

The Supreme Court addressed a very similar issue in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), where it struck down an ordinance in Georgia that permitted the local government to set varying fees for events based upon how much police protection the event would need. Invalidating the ordinance, the Court wrote that “[t]he fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.” Id. at 134. Deciding that such a determination required county administrators to “examine the content of the message that is conveyed,” the Court wrote that “[l]isteners’ reaction to speech is not a content-neutral basis for regulation. … Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” Id. at 134–35 (emphasis added).

Despite this precedent, the impermissible use of security fees to burden controversial speech is all too common on university campuses:

• A SUNY New Paltz policy considers “various elements/controversial factors to your event” in determining how much security will need to be hired.[43]
• Binghamton University notes that campus organizations sponsor events “which tend to generate a great deal of controversy in the community” from time to time, and that the sponsor of the event is responsible for the cost of officers and any special equipment as “determined by the University Police.”[44]
• At Georgia State University, events are subject to a host of requirements (including a minimum notice of 15 days) whenever the university determines the event poses a security concern “in the sole discretion of the university.” Under the policy, the sponsoring organization is “responsible for all costs related to security.”[45]

Prior Restraints

The Supreme Court has held that “[i]t is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002). Yet many colleges and universities enforce prior restraints, requiring students and student organizations to register their expressive activities well in advance and, often, to obtain administrative approval for those activities. For example:

• Virginia State University requires student organizations to request permission from the administration to conduct expressive activities “at least 10 days in advance.”[46]
• At Marquette University, “[a]ll publicity, literature, handouts, fliers, etc.” must be approved by the administration at least two weeks in advance.[47]
• Northeastern University forces students to fill out a “Demonstration Permit” at least seven days before their organization intends to demonstrate on campus property.[48]

Free Speech Zone Policies

Of the 466 schools surveyed for this report, 49 institutions (10.5%) have “free speech zone” policies—policies limiting student demonstrations and other expressive activities to small and out-of-the-way areas on campus.[49] Despite being inconsistent with the First Amendment, free speech zones are more common at public universities than at private universities: 12.7% of public universities surveyed maintain free speech zones, while just 2.9% of private universities do.

Free speech zones have repeatedly been struck down by courts or voluntarily revised by colleges as part of settlements to lawsuits brought by students. FIRE’s Stand Up For Speech Litigation Project has included successful challenges to free speech zone policies at eight colleges and universities and includes an ongoing challenge to a free speech zone policy at Pierce College in Los Angeles.[50]

Additionally, state legislatures have continued this year to take action to prohibit public colleges and universities from maintaining free speech zones. Currently, eleven states have enacted laws prohibiting these restrictive policies: Virginia, Missouri, Arizona, Kentucky, Colorado, Utah, North Carolina, Tennessee, Florida, Georgia, and Louisiana.

Based on the Campus Free Expression (CAFE) Act model legislation from FIRE,[51] Florida’s bill, which was signed into law in March 2018, states:

A person who wishes to engage in an expressive activity in outdoor areas of campus may do so freely, spontaneously, and contemporaneously as long as the person’s conduct is lawful and does not materially and substantially disrupt the functioning of the public institution of higher education or infringe upon the rights of other individuals or organizations to engage in expressive activities. … A public institution of higher education may not designate any area of campus as a free-speech zone or otherwise create policies restricting expressive activities to a particular area of campus …[52]

The law also provides a right to sue a public institution of higher education in Florida if the institution violates the expressive rights guaranteed by the law.[53]

Despite the unpopularity of free speech zones with judges and lawmakers, too many universities still maintain them, such as the following:

• Old Dominion University forces students to reserve certain designated areas for “[f]ree speech events or forums.”[54]
• At Kean University, students need to use “sites designated for the sale or distribution of literature including leaflets, handbills, handouts, newspapers and other written material when not in connection with a scheduled University event.”[55]
• Cornell University sets aside just one “rally space” for all of its students to conduct expressive activities in.[56]

The good news is that the types of restrictions discussed in this report can be reformed. A student or faculty member can be a tremendously effective advocate for change when he or she is aware of expressive rights and is willing to engage administrators in defense of them. Public exposure is also critical to defeating speech codes, since universities are often unwilling to defend their speech codes in the face of public criticism.

Unconstitutional policies also can be defeated in court, especially at public universities, where speech codes have been struck down in federal courts across the country. Many more such policies have been revised in favor of free speech as the result of legal settlements.

Any speech code in force at a public university is vulnerable to a constitutional challenge. Moreover, as speech codes are consistently defeated in court, administrators cannot credibly argue that they are unaware of the law, which means that they may be held personally liable when they are responsible for their schools’ violations of constitutional rights.[57]

The suppression of free speech at institutions of higher education is a matter of great national concern. But, by working together with universities to revise restrictive speech codes and to reaffirm commitments to free expression, we can continue to stride toward campuses that truly embody the “marketplace of ideas” that such institutions must be in our society.

Red Light

 

 

Adams State University
Alabama A&M University
Barnard College
Bates College
Black Hills State University
Boise State University
Boston College
Boston University
Bryn Mawr College
California State University - Channel Islands
California State University - Dominguez Hills
California State University - Fresno
California State University - Monterey Bay
Carleton College
Case Western Reserve University
Cheyney University of Pennsylvania
Chicago State University
Clark University
Clemson University
Coastal Carolina University
Colby College
Colgate University
College of Charleston
College of the Holy Cross
Connecticut College
Dartmouth College
Davidson College
Delaware State University
Delta State University
DePauw University
Dickinson College
Drexel University
Eastern Illinois University
Eastern Washington University
Evergreen State College
Florida State University
Fordham University
Framingham State University
Furman University
George Washington University
Georgetown University
Georgia Southern University
Governors State University
Grambling State University
Grinnell College
Harvard University
Howard University
Idaho State University
Jackson State University
Johns Hopkins University
Kean University
Kentucky State University
Lafayette College
Lake Superior State University
Lehigh University
Lewis-Clark State College
Lincoln University
Louisiana State University - Baton Rouge
Lyndon State College
Macalester College
Mansfield University of Pennsylvania
Marquette University
McNeese State University
Middle Georgia State University
Middlebury College
Missouri State University
Morehead State University
Mount Holyoke College
Murray State University
New Jersey Institute of Technology
New York University
Northeastern University
Northern Illinois University
Northern Kentucky University
Oklahoma State University - Stillwater
Pennsylvania State University - University Park
Portland State University
Princeton University
Reed College
Rensselaer Polytechnic Institute
Salem State University
Sam Houston State University
Southeastern Louisiana University
Southern Illinois University at Carbondale
Southern Illinois University at Edwardsville
Southern Oregon University
St. Olaf College
State University of New York - Albany
State University of New York - Fredonia
State University of New York - New Paltz
Stevens Institute of Technology
Syracuse University
Tennessee State University
The College of New Jersey
Troy University
Tufts University
Tulane University
Union College
University of Alabama at Birmingham
University of Alaska Anchorage
University of Alaska Fairbanks
University of Central Missouri
University of Central Oklahoma
University of Houston
University of Illinois at Chicago
University of Louisiana at Lafayette
University of Massachusetts at Dartmouth
University of Massachusetts at Lowell
University of Miami
University of Michigan - Ann Arbor
University of Michigan - Dearborn
University of Michigan - Flint
University of Montana
University of New Orleans
University of North Texas
University of Notre Dame
University of Rhode Island
University of South Carolina Columbia
University of Texas at Austin
University of Texas at Dallas
University of Tulsa
University of West Alabama
University of Wisconsin - Oshkosh
University of Wyoming
Utah State University
Utah Valley University
Virginia State University
Wake Forest University
Wesleyan University
Western Illinois University
Whitman College
William Paterson University
Worcester Polytechnic Institute

Yellow Light

Alabama State University
Alcorn State University
American University
Amherst College
Angelo State University
Arkansas State University
Athens State University
Auburn University Montgomery
Ball State University
Bard College
Bemidji State University
Binghamton University, State University of New York
Bloomsburg University of Pennsylvania
Bowdoin College
Bowling Green State University
Brandeis University
Bridgewater State University
Brooklyn College, City University of New York
Brown University
Bucknell University
California Institute of Technology
California Maritime Academy
California Polytechnic State University
California State Polytechnic University - Pomona
California State University - Bakersfield
California State University - Chico
California State University - East Bay
California State University - Fullerton
California State University - Long Beach
California State University - Los Angeles
California State University - Northridge
California State University - Sacramento
California State University - San Bernardino
California State University - San Marcos
California State University - Stanislaus
California University of Pennsylvania
Cameron University
Central Connecticut State University
Central Michigan University
Central Washington University
Centre College
Christopher Newport University
Clarion University of Pennsylvania
Colorado College
Colorado Mesa University
Colorado School of Mines
Colorado State University
Colorado State University - Pueblo
Columbia University
Cornell University
Dakota State University
East Stroudsburg University of Pennsylvania
East Tennessee State University
Eastern Michigan University
Eastern New Mexico University
Elizabeth City State University
Fayetteville State University
Ferris State University
Fitchburg State University
Florida A&M University
Florida Atlantic University
Florida Gulf Coast University
Florida International University
Fort Hays State University
Fort Lewis College
Franklin & Marshall College
Frostburg State University
Georgia Institute of Technology
Georgia State University
Gettysburg College
Grand Valley State University
Hamilton College
Harvey Mudd College
Haverford College
Henderson State University
Humboldt State University
Illinois State University
Indiana State University
Indiana University - Bloomington
Indiana University - Kokomo
Indiana University - Purdue University Columbus
Indiana University - Purdue University Indianapolis
Indiana University of Pennsylvania
Indiana University South Bend
Indiana University, East
Indiana University, Northwest
Indiana University, Southeast
Iowa State University
Jacksonville State University
James Madison University
Kennesaw State University
Kent State University
Kenyon College
Kutztown University of Pennsylvania
Lock Haven University of Pennsylvania
Longwood University
Louisiana Tech University
Marshall University
Massachusetts College of Liberal Arts
Massachusetts Institute of Technology
Metropolitan State University
Metropolitan State University of Denver
Miami University of Ohio
Michigan State University
Middle Tennessee State University
Millersville University of Pennsylvania
Missouri University of Science and Technology
Montana State University
Montana Tech of the University of Montana
Montclair State University
New College of Florida
New Mexico State University
Nicholls State University
Norfolk State University
North Carolina A&T State University
North Carolina State University - Raleigh
North Dakota State University
Northeastern Illinois University
Northern Arizona University
Northern Michigan University
Northwestern Oklahoma State University
Northwestern State University
Northwestern University
Oakland University
Oberlin College
Occidental College
Ohio University
Old Dominion University
Pittsburg State University
Pitzer College
Pomona College
Radford University
Rhode Island College
Rice University
Rogers State University
Rowan University
Rutgers University - New Brunswick
Saginaw Valley State University
Saint Cloud State University
San Diego State University
San Francisco State University
San Jose State University
Scripps College
Sewanee, The University of the South
Shawnee State University
Skidmore College
Slippery Rock University of Pennsylvania
Smith College
Sonoma State University
South Dakota State University
Southeast Missouri State University
Southern Connecticut State University
Southern Methodist University
Southwest Minnesota State University
Stanford University
State University of New York - Oswego
State University of New York - University at Buffalo
State University of New York College of Environmental Science and Forestry
Stockton University
Stony Brook University
Swarthmore College
Tarleton State University
Temple University
Tennessee Technological University
Texas A&M University - College Station
Texas Southern University
Texas State University - San Marcos
Texas Tech University
Texas Woman's University
The City College of New York
The Ohio State University
The University of Virginia's College at Wise
Towson University
Trinity College
University of Akron
University of Alabama
University of Alabama in Huntsville
University of Alaska Southeast
University of Arizona
University of Arkansas - Fayetteville
University of California - Riverside
University of California-Merced
University of California, Berkeley
University of California, Davis
University of California, Irvine
University of California, San Diego
University of California, Santa Barbara
University of California, Santa Cruz
University of Central Arkansas
University of Central Florida
University of Cincinnati
University of Colorado at Boulder
University of Connecticut
University of Delaware
University of Denver
University of Georgia
University of Hawaii at Hilo
University of Hawaii at Manoa
University of Idaho
University of Illinois at Springfield
University of Illinois at Urbana-Champaign
University of Iowa
University of Kansas
University of Kentucky
University of Louisville
University of Maine
University of Maine at Fort Kent
University of Maine at Presque Isle
University of Mary Washington
University of Massachusetts - Amherst
University of Massachusetts - Boston
University of Memphis
University of Minnesota - Morris
University of Minnesota - Twin Cities
University of Missouri - Columbia
University of Missouri-Kansas City
University of Missouri-St. Louis
University of Montana Western
University of Montevallo
University of Nebraska - Lincoln
University of Nevada, Las Vegas
University of Nevada, Reno
University of New Mexico
University of North Alabama
University of North Carolina - Asheville
University of North Carolina - Pembroke
University of North Carolina School of the Arts
University of North Georgia
University of Northern Colorado
University of Northern Iowa
University of Oklahoma
University of Oregon
University of Pittsburgh
University of Richmond
University of Rochester
University of South Alabama
University of South Dakota
University of South Florida
University of South Florida at Saint Petersburg
University of Southern California
University of Southern Indiana
University of Southern Maine
University of Southern Mississippi
University of Texas at Arlington
University of Texas at El Paso
University of Texas at San Antonio
University of Texas at Tyler
University of Toledo
University of Utah
University of Vermont
University of Washington
University of West Florida
University of West Georgia
University of Wisconsin - Eau Claire
University of Wisconsin - Green Bay
University of Wisconsin - La Crosse
University of Wisconsin - Madison
University of Wisconsin - Milwaukee
University of Wisconsin - Stout
Valdosta State University
Vanderbilt University
Virginia Commonwealth University
Virginia Polytechnic Institute and State University
Washington & Lee University
Washington State University
Washington University in St. Louis
Wayne State University
Weber State University
Wellesley College
West Chester University of Pennsylvania
West Virginia University
Western Carolina University
Western Kentucky University
Western Michigan University
Western Oregon University
Western Washington University
Westfield State University
Wichita State University
Williams College
Winona State University
Winston-Salem State University
Worcester State University
Wright State University
Yale University
Youngstown State University

Green Light

Appalachian State University
Arizona State University
Auburn University
Carnegie Mellon University
Claremont McKenna College
Cleveland State University
Duke University
East Carolina University
Eastern Kentucky University
Edinboro University of Pennsylvania
Emory University
George Mason University
Kansas State University
Keene State College
Michigan Technological University
Mississippi State University
North Carolina Central University
Oregon State University
Plymouth State University
Purdue University
Purdue University Fort Wayne
Purdue University Northwest
Shippensburg University
State University of New York - Brockport
State University of New York - Plattsburgh
The College of William and Mary
University of California, Los Angeles
University of Chicago
University of Florida
University of Maryland - College Park
University of Mississippi
University of New Hampshire
University of North Carolina - Chapel Hill
University of North Carolina - Charlotte
University of North Carolina - Greensboro
University of North Carolina - Wilmington
University of North Dakota
University of North Florida
University of Pennsylvania
University of Tennessee - Knoxville
University of Virginia
Western Colorado University

Warning Schools

Baylor University
Brigham Young University
Pepperdine University
Saint Louis University
Vassar College
Yeshiva University

School	2016–2017 Rating	2017–2018 Rating
American University	Red	Yellow
Auburn University	Yellow	Green
California State University - Long Beach	Red	Yellow
Claremont McKenna College	Yellow	Green
Colorado College	Red	Yellow
Dartmouth College	Yellow	Red
Eastern Michigan University	Red	Yellow
Emory University	Yellow	Green
Franklin & Marshall College	Red	Yellow
Keene State College	Red	Green
Kentucky State University	Yellow	Red
Kenyon College	Red	Yellow
Middle Tennessee State University	Red	Yellow
Northeastern Illinois University	Red	Yellow
Rice University	Red	Yellow
Salem State University	Yellow	Red
Shawnee State University	Red	Yellow
Swarthmore College	Red	Yellow
University of California Los Angeles	Yellow	Green
University of California Riverside	Red	Yellow
University of Central Missouri	Yellow	Red
University of Hawaii at Manoa	Red	Yellow
University of Kansas	Red	Yellow
University of Maine Presque Isle	Red	Yellow
University of Minnesota - Morris	Red	Yellow
University of New Hampshire	Yellow	Green
University of New Mexico	Red	Yellow
University of North Dakota	Yellow	Green
University of North Georgia	Red	Yellow
University of Richmond	Red	Yellow
University of South Dakota	Red	Yellow
Wellesley College	Red	Yellow
West Chester University of Pennsylvania	Red	Yellow
Williams College	Red	Yellow
Worcester Polytechnic Institute	Warning	Red

Note: Some of the institutions on this list are not rated as a part of the Spotlight database at this time and thus do not fall within this report’s speech code analysis. However, they have been included here in order to provide a full list of the institutions at which either the administration or a faculty body has adopted a version of the Chicago Statement. Such institutions are denoted with an asterisk.

American University
Amherst College
Appalachian State University
Arizona State University
Ashland University*
Brandeis University
California State University - Channel Islands
Chapman University*
Claremont McKenna College
Colgate University
Columbia University
Denison University*
Eckerd College*
Franklin & Marshall College
Georgetown University
Gettysburg College
Johns Hopkins University
Joliet Junior College*
Kansas State University
Kenyon College
Louisiana State University
Michigan State University
Middle Tennessee State University
Northern Illinois University
Ohio University
Princeton University
Purdue University
Ranger College*
Smith College
State University of New York - University at Buffalo
Tennessee Technological University
The City University of New York
The Citadel*
University of Arkansas at Little Rock*
University of Central Florida
University of Colorado System
University of Denver
University of Maryland
University of Maine System
University of Minnesota
University of Missouri System
University of Montana
University of Nebraska
University of North Carolina - Chapel Hill
University of Southern Indiana
University of Virginia College at Wise
University of Wisconsin System
Vanderbilt University
Washington and Lee University
Washington University in St. Louis
Winston-Salem State University

Arkansas State University
Auburn University Montgomery
Ball State University
Bemidji State University
California State University - Bakersfield
California State University - Dominguez Hills
California State University - Los Angeles
California State University - San Marcos
Cameron University
Cornell University
East Tennessee State University
Eastern Washington University
Elizabeth City State University
Florida State University
Frostburg State University
Lyndon State College
Montclair State University
Morehead State University
Murray State University
Northern Illinois University
Old Dominion University
Rutgers University - New Brunswick
Saint Cloud State University
Salem State University
Southeast Missouri State University
Southeastern Louisiana University
Southern Illinois University at Carbondale
Stanford University
Tennessee Technological University
Texas Woman's University
The College of New Jersey
Troy University
Tulane University
University of Central Arkansas
University of Colorado at Boulder
University of Illinois at Chicago
University of Illinois at Urbana-Champaign
University of Kentucky
University of Massachusetts at Dartmouth
University of Montana
University of North Carolina - Pembroke
University of North Carolina School of the Arts
University of North Georgia
University of South Carolina Columbia
University of Southern Mississippi
University of West Alabama
University of West Florida
Valdosta State University

[1] See, e.g., Gooding v. Wilson, 405 U.S. 518 (1972) (holding that a Georgia statute prohibiting “opprobrious words or abusive language” was unconstitutional because those terms, as commonly understood, encompassed speech protected by the First Amendment).

[2] For example, Pepperdine University’s Student Handbook provides that “[i]n keeping with Pepperdine University’s Christian mission and its heritage in Churches of Christ, all members of the University community are encouraged to respect the teachings of Jesus and historic, biblical Christianity. It is expected that all students will adhere to biblical teaching regarding moral and ethical practices. Engaging in or promoting conduct or lifestyles inconsistent with biblical teaching is not permitted.” Code of Conduct, "PEPPERDINE UNIV. SEAVER COLL. OF LETTERS, ARTS, AND SCI. 2017–2018 STUDENT HANDBOOK, at 5, available at https://www.pepperdine.edu/admission/student-life/policies/content/seaver-handbook.pdf. It would be clear to any reasonable person reading this policy that students are not entitled to unfettered free speech at Pepperdine.

[3] FIRE has designated the following schools as “Warning” schools: Baylor University, Brigham Young University, Pepperdine University, Saint Louis University, Vassar College, Worcester Polytechnic Institute, and Yeshiva University.

[4] See Appendix A for a full list of schools by rating.

[5] The 2009 report and all other past Spotlight on Speech Codes reports are available at https://www.thefire.org/resources/spotlight/reports.

[6] Auburn University, Claremont McKenna College, Emory University, Keene State College, University of California, Los Angeles, University of New Hampshire, and University of North Dakota all joined the ranks of green light schools since last year’s report.

[7] See Appendix B for a full list of rating changes over the 2017–18 academic year.

[8] Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, provides that: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” See generally Jacob E. Gersen & Jeannie Suk, The Sex Bureaucracy, 104 CAL. L. REV. (2016) (discussing evolution of Title IX requirements).

[9] McCauley v. Univ. of the V.I., 618 F.3d 232 (3d Cir. 2010); DeJohn v. Temple Univ., 537 F.3d 301 (3d Cir. 2008); Dambrot v. Cent. Mich. Univ., 55 F.3d 1177 (6th Cir. 1995); Univ. of Cincinnati Chapter of Young Am. for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Jun. 12, 2012); Smith v. Tarrant Cty. Coll. Dist., 694 F. Supp. 2d 610 (N.D. Tex. 2010); Coll. Republicans at S.F. St. Univ. v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003); Booher v. N. Ky. Univ. Bd. of Regents, No. 2:96-CV-135, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. July 21, 1998); Corry v. Leland Stanford Junior Univ., No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.); UWM Post, Inc. v. Bd. of Regents of the Univ. of Wis., 774 F. Supp. 1163 (E.D. Wisc. 1991); Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989). In addition, numerous institutions have voluntarily modified their speech codes as part of settlement agreements. See, e.g., Press Release, Found. for Individual Rights in Educ., Victory: Texas College Settles Free Speech Lawsuit After Telling Student that Gun Rights Sign Needs ‘Special Permission’ (May 4, 2016), https://www.thefire.org/victory-texas-college-settles-free-speech-lawsuit-after-telling-student-that-gun-rights-sign-needs-special-permission; Press Release, Found. for Individual Rights in Educ., Victory: Lawsuit Settlement Restores Free Speech Rights at Dixie State U. After Censorship of Bush, Obama, Che Flyers (Sept. 17, 2015), available at https://www.thefire.org/victory-lawsuit-settlement-restores-free-speech-rights-at-dixie-state-u-after-censorship-of-bush-obama-che-flyers.

[10] California maintains a law that applies the protections of the First Amendment to private, nonsectarian institutions of higher education in the state. Section 94367 of the California Education Code—the so-called “Leonard Law”—provides that “No private postsecondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article I of the California Constitution.” The code further provides that the law “does not apply to a private postsecondary educational institution that is controlled by a religious organization, to the extent that the application of this section would not be consistent with the religious tenets of the organization.”

[11] Policy on Freedom of Thought, Inquiry and Expression, and Dissent by Students, LEHIGH UNIVERSITY HANDBOOK, available at https://studentaffairs.lehigh.edu/sites/studentaffairs.lehigh.edu/files/offices/conduct/docs/Handbook/Lehigh_Student%20Conduct%20Handbook2017Final882018.pdf.

[12] Demonstrations & Protests Policy, MIDDLEBURY HANDBOOK, available at http://www.middlebury.edu/about/handbook/policies-for-all/health-safety/demonst-protests.

[13] Committee on Freedom of Expression at the University of Chicago, Report of the Committee on Freedom of Expression, available at http://provost.uchicago.edu/FOECommitteeReport.pdf. For a complete list of institutions that have adopted a version of the Chicago Statement, see https://www.thefire.org/chicago-statement-university-and-faculty-body-support.

[14] See Letter from Sarah McLaughlin, Senior Program Officer, Found. for Individual Rights in Educ., to Kimberly R. Cline, President, Long Island Univ. (Aug. 31, 2018), available at https://www.thefire.org/fire-letter-to-long-island-university-post-august-31-2018.

[15] Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 134–35 (1992).

[16] Posting Policy, STUDENT HANDBOOK (CODE OF CONDUCT), available at https://www.lssu.edu/campus-life/stay-informed/student-handbook/#toggle-id-5.

[17] Acceptable Use Policy, available at http://www.aamu.edu/administrativeoffices/information-technology/ITpolicies/Pages/Acceptable-Use-Policy.aspx.

[18] Freedom of Expression Activities and Forum Areas, TEXAS TECH UNIVERSITY STUDENT HANDBOOK, available at http://www.depts.ttu.edu/dos/docs/1819Handbook.pdf.

[19] See Letter from Shaheena Simons and Damon Martinez, U.S. Dep’t of Justice to Robert G. Frank, President, Univ. of N.M. (Apr. 22, 2016), available at https://www.justice.gov/opa/file/843901/download; Letter from Anurima Bhargava, Chief, Civil Rights Div., U.S. Dep’t of Justice, and Gary Jackson, Reg’l Dir., Office for Civil Rights, U.S. Dep’t of Educ., to Royce Engstrom, President, Univ. of Mont. and Lucy France, Univ. Counsel, Univ. of Mont. (May 9, 2013), available at http://www.justice.gov/opa/documents/um-ltr-findings.pdf.

[20] Appendix D: Policy on Sex Discrimination, Sexual Harassment, Sexual Assault, Sexual Misconduct, Interpersonal Violence, and Stalking, GENERAL INFORMATION 2018-2019, available at http://catalog.utexas.edu/general-information/appendices/appendix-d.

[21] Student Code of Conduct, THE UNIVERSITY OF RHODE ISLAND STUDENT HANDBOOK, available at https://web.uri.edu/studentconduct/files/2015-2017-Student-Handbook.pdf.

[22] AD85 Sexual And/or Gender-Based Harassment and Misconduct, available at https://policy.psu.edu/policies/ad85.

[23] See, e.g., DeJohn, 537 F.3d 301 (holding that Temple University’s sexual harassment policy was unconstitutionally broad); Doe v. Univ. of Mich., 721 F. Supp. 852 (holding that University of Michigan’s discriminatory harassment policy was unconstitutionally broad); Booher, 1998 U.S. Dist. LEXIS 11404 (holding that Northern Kentucky University’s sexual harassment policy was unconstitutionally broad).

[24] “Dear Colleague” Letter from Russlynn Ali, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ. (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html.

[25] “In the place of parents.”

[26] See generally McCauley, 618 F.3d at 243–44 (“[T]he pedagogical missions of public universities and public elementary and high schools are undeniably different. While both seek to impart knowledge, the former encourages inquiry and challenging priori assumptions whereas the latter prioritizes the inculcation of societal values. … The idea that public universities exercise strict control over students via an in loco parentis relationship has decayed to the point of irrelevance.”).

[27] Student Conduct Code, UNION COLLEGE STUDENT HANDBOOK, available at https://www.union.edu/files/dean-students/201809/student-handbook-2018-2019.pdf.

[28] Bullying, STUDENT CONDUCT CODE POLICY #5000, available at https://isu.edu/media/libraries/isu-policies-and-procedures/student-affairs/5000-Student-Conduct-System.pdf.

[29] Cyberbullying Policy, KENTUCKY STATE UNIVERSITY STUDENT CODE OF CONDUCT, available at http://kysu.edu/wp-content/uploads/2014/04/Code-of-Conduct-.pdf.

[30] See Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable”); see also Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 206 (3d Cir. 2001) (holding that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive….”); Bair v. Shippensburg Univ., 280 F. Supp. 2d 357 (M.D. Pa. 2003) (“[R]egulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings”); Doe v. Univ. of Mich., 721 F. Supp. 852 (“Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people”).

[31] Evergreen’s Social Contract, available at https://www.evergreen.edu/about/social.

[32] Code of Student Conduct, available at https://studentconduct.georgetown.edu/code-of-student-conduct.

[33] Principles for Ensuring Equity, Civility and Respect for All, available at https://www.jhu.edu/assets/uploads/2014/09/equity_civility_respect.pdf.

[34] See, e.g., Reed, 523 F. Supp. 2d 1005 (enjoining enforcement of university civility policy because “there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.”).

[35] 5.12 Social Networking/Social Media, STUDENT HANDBOOK, available at https://www.macalester.edu/documents/studenthandbook/05campuspolicies/05-12socialnetworking.html.

[36] University Conditions of Use & Policy on Computing Ethics, available at http://www.bu.edu/dos/policies/lifebook/computing-ethics.

[37] Acceptable Use Policy, available at https://ts.tulane.edu/acceptable-use-policy.

[38] See generally Bias Response Team Report 2017, FOUND. FOR INDIVIDUAL RIGHTS IN EDUC., available at https://www.thefire.org/research/publications/bias-response-team-report-2017/.

[39] Bias Incidents & Hate Crimes, available at http://www.bates.edu/diversity-inclusion/bias-incidents-hate-crimes/#definitions.

[40] Code of Student Conduct, STUDENT HANDBOOK, available at https://www.clarku.edu/offices/dean-of-students/wp-content/blogs.dir/3/files/sites/19/2018/08/Student_Handbook_2018_2019.pdf.

[41] Hate Crimes and Bias-Motivated Incidents Policy, STUDENT HANDBOOK, available at https://catalog.grinnell.edu/content.php?catoid=12&navoid=2536#Hate_Crimes_and_Bias-Motivated_Incidents_Policy.

[42] See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989).

[43] Event Security, OFFICE OF STUDENT ACTIVITIES AND UNION SERVICES POLICY MANUAL, available at https://www.newpaltz.edu/media/student-activities-and--union-services/saus/SAUS%20POLICIES%202017-2018.pdf.

[44] Guidelines for Sponsoring Campus Events that Require Extra-ordinary Security Arrangements, available at https://www.binghamton.edu/campus-activities/docs/Extra-Ordinary%20Security%20FINAL.pdf.

[45] Special Event/Late Night Event Policy, CODE OF CONDUCT, available at https://codeofconduct.gsu.edu/files/2018/10/2018_10_2_codeOfConduct.pdf.

[46] Rallies, Public Assemblies and Demonstrations, STUDENT ORGANIZATION HANDBOOK, available at http://vsu.edu/files/docs/student-activities/handbook-for-student-organizations.pdf.

[47] Participation in Student Organization Sponsored Events, STUDENT ORGANIZATION POLICY HANDBOOK, available at http://www.marquette.edu/student-development/organizations/documents/student-organization-handbook-2017-2018.pdf.

[48] Demonstrations, STUDENT ORGANIZATION RESOURCE GUIDE, available at http://www.northeastern.edu/csi/wp-content/uploads/2013/10/ResourceGuide_2016_Final.pdf.

[49] See Appendix D for a full list of schools with free speech zone policies.

[50] For more information about FIRE’s Stand Up for Speech Litigation Project and Million Voices campaign, see http://www.standupforspeech.com.

[51] For more detailed information about the CAFE Act, see https://www.thefire.org/frequently-asked-questions-the-campus-free-expression-cafe-act.

[52] Senate Bill 4, the Florida Excellence in Higher Education Act of 2018, available at http://www.myfloridahouse.gov/Sections/Documents/loaddoc.aspx?FileName=_s0004er.DOCX&DocumentType=Bill&BillNumber=0004&Session=2018.

[53] Press Release, Found. for Individual Rights in Educ., Florida becomes ninth state to ban restrictive campus free speech zones (March 12, 2018), available at https://www.thefire.org/florida-becomes-ninth-state-to-ban-restrictive-campus-free-speech-zones.

[54] Webb Center & Outdoor Space Scheduling Policy, STUDENT ORGANIZATION HANDBOOK, available at https://www.odu.edu/content/dam/odu/offices/student-activities-leadership/docs/student-organization-handbook-2016-2017.pdf.

[55] Distribution of Literature Policy, available at https://www.kean.edu/offices/policies/distribution-literature-policy.

[56] General policies for student organizations, STUDENT ORGANIZATION HANDBOOK, available at http://orgsync.rso.cornell.edu/Handbook_Pol.

[57] Azhar Majeed, Putting Their Money Where Their Mouth Is: The Case for Denying Qualified Immunity to University Administrators for Violating Students’ Speech Rights, 8 CARDOZO PUB. L., POL’Y & ETHICS J. 3, 515 (2010).

[58] See Appendix C for a full list of institutions that have adopted a version of the Chicago Statement.

[59] These institutions are Arizona State University, Claremont McKenna College, Kansas State University, Purdue University, and the University of Maryland.