Table of Contents
Video Lesson: Speech Codes on Campus
First Amendment for College Administrators
Lesson 1: Public Colleges: Legal Landscape and Landmark Cases
Video 6: Speech Codes on Campus
Video Transcript
Speech codes are university policies or regulations prohibiting expression that would be constitutionally protected in society at large. These regulations appear in all types of policies 鈥 harassment, bullying, protest and demonstration, posting, internet use, security fees, policies on tolerance, respect, and civility, or on 鈥渂ias鈥 and 鈥渉ate speech,鈥 along with others. These policies are usually found in student handbooks, policy manuals, or in other official university publications.
As walls of discrimination designed to keep women and disfavored minorities out of many colleges fell starting in the 1970s and through the 90s, universities saw an unprecedented influx of students from different races and religions and of women and openly gay students. Unfortunately, some college administrations鈥攕eeking to assist the peaceful coexistence of individuals in their more diverse communities鈥攂egan looking for ways to prevent the friction that they feared would result from these changes. This often resulted in the creation of speech codes, which all too often hindered instead of helped students adjust to campus life.
FIRE of the 1960s had torn down most of the conception of the university as acting in loco parentis (a Latin term that means standing in the role of parents). College students, after all, are adults with full First Amendment rights. But from the 1970s on, and above all in the 1980s, administrators too often chose to restore what was largely a rebranded version of in loco parentis that went far beyond the authority the students of the 1960s had ended. One part of this trend was the imposition of policies against 鈥渙ffensive speech.鈥 These speech codes often sought to prevent, and to punish, protected speech that would offend one鈥檚 fellow students on the basis of the listener鈥檚 race, religion, ethnicity, gender, or sexual orientation. Thus, these policies not only limited speech and expression, but did so in a manner that disfavored certain types of speech and favored certain points of view over others. Moreover, the speech codes often barred the expression that obviously belonged in any 鈥渇ree marketplace of ideas鈥 just because administrators wanted to avoid student friction or demonstrations.
Broad policies against controversial, offensive or distasteful speech, however, are not only utterly incompatible with the goals of higher education, but also often unconstitutional. The First Amendment protects speech not everyone likes. It also doesn鈥檛 police tone: The Constitution gives us the right to express ourselves in all sorts of ways, even when we鈥檙e angry, unmeasured, or even uncivil. At public colleges and universities, policies that say otherwise likely violate the Constitution.
After all, the First Amendment鈥檚 concept of 鈥渁cademic freedom鈥 urges discussion of even the most controversial and provocative issues. There should be vigorous and unfettered debate on campuses, all in the name of the search for truth that almost all liberal arts institutions long have claimed as their governing ethic. Thus far, courts have agreed, at least on constitutional grounds, striking down speech codes virtually every time that they have been directly challenged.
Nonetheless, policies on harassment, bias, and information technology use, and other topics continue to prohibit speech and expression that would be protected in society at large on the overwhelming majority of college campuses today, including public institutions bound by the First Amendment. This persistent problem contributes to a poor campus climate for free expression, discouraging students from thinking, learning, and discussing topics freely and openly.
FIRE has been cataloging speech codes on campus since 2006. In our nearly 20 years of research, the landscape has shifted significantly for many reasons 鈥 for example, the tireless work of free speech advocates on and off-campus, federal regulations regarding Title IX policies, and the impact of various state legislative campus free speech bills. While universities across the country have made great strides to improve the worst, 鈥渞ed light鈥 policies that clearly and substantially restrict freedom of speech (nearly 75% of schools earned a red light in 果冻传媒app官方鈥檚 2009 Spotlight on Speech Codes report; only 20% of schools earned this rating in our 2024 report) there is still much work to be done.
In 果冻传媒app官方鈥檚 2024 report, 65.4% of institutions now earn an overall 鈥測ellow light鈥 rating, meaning the institution maintains at least one policy that restricts a more limited amount of protected expression or, by virtue of vague wording, can too easily be used to restrict protected expression. Critically, these policies 鈥 while not as egregious as red light policies 鈥 still restrict speech and are unconstitutional at public institutions. Encouragingly, in 2024, FIRErecognized 63 institutions 鈥 an all-time high number 鈥 for earning an overall green light rating, meaning they maintain no policies that seriously imperil speech.
FIRE stands ready to assist all colleges and universities aiming to improve their speech codes 鈥 free of charge 鈥 to ensure they serve the goals of the institution to reasonably regulate expression while still aligning with First Amendment standards. When students and faculty are able to speak freely, the whole institution benefits.