FIRE goes back to college

Well, it's back to college time. A time for some students and faculty to be thankful for the existence of FIRE (the Foundation for Individual Rights in Education). Issues & Views has covered the work of FIRE since its formation, back in 1999, by civil liberties lawyer Harvey Silverglate and Charles Kors, a Professor of History. See here, here, and here.

Determined to live up to its mission to defend constitutional rights on the college campus, FIRE has lent its support in legal actions to students and faculty members against recalcitrant university officials, who suppress free speech and due process. It also has been called upon to assist students who face administrative punishment for nothing more than wearing Halloween costumes or face masks deemed by some to be "hurtful," when viewed by members of specifically "protected" groups. You know which groups they are.

Although FIRE champions the rights of all members of academia, no matter their political perspective, you may remember its early days, when the organization went to bat for those conservatives, who were invited to speak at colleges, but were often barred from doing so, by the obstreperous behavior of campus goons, who did not share their political views. Sometimes, events simply had to be canceled due to threats of physical assault. Such behavior often was not condemned by school administrators, whose politics usually coincided with those of the trouble makers.

Over the years, the grievances began to pile up, as college administrators allowed politically biased students or staff members to set arbitrary rules for others to follow, or engaged in such high-handed practices themselves. In 2002, at Arizona State University, for example, there was actually a course listed in the school's catalog that forbade anyone, except "Native American students," from taking it. Here was course restriction based on race at a tax-funded state institution. One letter from FIRE brought a prompt removal of the enrollment restriction.

Then came "speech codes," "free speech zones," "sensitivity training," the banning of parody and satire in student publications, and even open incitement to members of "historically oppressed groups" to discern real or imagined instances of "offenses" directed towards them. "What an astonishing expectation to give to students," wrote Silverglate, "the belief that they have the right to four years of never being offended."

Kors observed that, through intimidating policies that might result in punishment, "Students learn to censor themselves so as not to say or do anything that may possibly bring them trouble. They are taught not to discuss or debate, but rather to call upon coercive authority to silence those with whom they disagree by means of sweeping disciplinary action and thought reform."

Thought reform, indeed. In 2003, FIRE challenged the speech code of Shippensburg University (Penn.) in federal court. The code, among other crazy stipulations, required that "every member of the community" mirror the official views of the university administration "in their attitudes and behaviors." Along with other repressive policies, students were ordered to take down any displays of posters or flyers that might be "hostile to Osama bin Laden." Such displays were deemed to be "offensive to other students." Upon FIRE's intervention, the U.S. District Court ordered Shippensburg's president to cease enforcing provisions of his university's ridiculous speech code.

Since feminists make up a large part of the female staff on most college campuses, it's not surprising that policies biased against men have become the rule in some college settings. In 2003, Harvard University defended a policy that gave women students the right to bring charges of assault or rape against male students, without the need of any form of corroborating evidence. Any student charged with this crime was not only denied the right to defend himself, he could not face his accuser directly, while hearing her testimony. There was no pretense of due process, and his fate was decided in closed sessions that he was not allowed to attend.

FIRE joined with a consortium of other civil libertarians to oppose what Kors described as "Star Chambers" proceedings at Harvard. He wrote, "There is virtually no place in the United States where Kangaroo courts and Star Chambers are the rule rather than the exception, except on college and university campuses."

Seven years earlier, in 1996, New York Times' reporter Nina Bernstein had written an investigative piece, in which she told of tendentious cases on campuses that "vanished into a separate judicial world so secret that many Americans are unaware that it operates behind closed doors at most of the nation's 3,600 colleges and universities."

When pressure was put upon Harvard to institute fairer procedures, the feminist brigade called out the troops, to protest any alterations to the existing policies that declared a woman's word alone sufficient to sustain a rape charge. In response to an appeal made by the feminist camp, which claimed that new rules would be a violation of Title IX, the Office of Civil Rights ruled that it found no evidence to support such a claim, and closed the case.

Charles Kors described the OCR's ruling as "an important first step" in opening the door for "greater due process at colleges across the country."

Now, in August 2008, an important victory for free speech on campus was rendered by the U.S. Court of Appeals, Third District (Phila.), in the case of DeJohn v. Temple University. In 2006, Temple student Christian DeJohn filed a complaint in federal district court charging that the university's sexual harassment policy violated his First Amendment right to free expression. DeJohn, who was a member of the Pennsylvania National Guard, claimed that speech codes inhibited him from discussing his views on campus, especially in regard to the role of women in the military. He said he would be punished under the specifications of Temple's speech codes.

When the university tried the clever dodge of revamping parts of its speech policy, thereby hoping to get the district court to drop the complaint, the court denied this motion, declaring that there was nothing to prevent Temple from reinstituting the policy at a later date. The district court ultimately found Temple's sexual harassment policy to be unconstitutional, and issued an injunction against its enforcement.

Unbelievably, Temple appealed the ruling in 2007. This gave the U.S. Appeals Court the opportunity to rule in favor of DeJohn, and to uphold the district court's ruling. The Appeals Court found that Temple's policy prohibited constitutionally protected speech and was "unacceptably overbroad."

So, where does this presently leave free speech on campus? A Washington Times editorial ponders how long restrictive speech codes can survive after the DeJohn ruling. "Colleges and universities generally know the game is up," writes the editorialist. Striking an optimistic note, the writer predicts, "The moment when the Orwellian practice of restricting speech at what are supposed to be this country's free centers of learning may not be far off."

That moment might be further away than we'd like to believe, if reports by FIRE on current policies and practices at dozens of colleges are any indication. Check out FIRE's Red Alerts, to learn about ongoing disregard for fundamental rights at colleges described by FIRE as "unrepentant offenders." Perhaps this month's court ruling will force certain modifications of blatantly biased policies, but the fight is not over yet.