When posters with “racially charged” messages appeared on the University of Michigan campus in October 2016, university president Mark Schlissel condemned the poster’s messages, but affirmed the students’ right to free speech. Less than a week after his statement, Schlissel announced he would support students as they tore down messages they did not agree with.
“I can’t legally take down a poster,” Schlissel said. “But you can.”
If a student found a racist, misogynist, homophobic, transphobic, anti-Muslim or “you fill in the blank” message, Schlissel urged students to call him.
“I’m going to stand next to you while you erase it,” Schlissel said. “That’s how we can fight this.”
Schlissel’s call to action was deemed censorship by the Foundation for Individual Rights in Education (FIRE), a non-profit educational foundation that advocates for free speech on college campuses.
FIRE uses a rating system to protect student expression by holding universities accountable for their speech code policies. FIRE defines speech codes as policies that prohibit speech that, outside of campus boundaries, would be protected under the First Amendment. These codes can include harassment policies, protest/demonstration requirements and social media inspections.
With green, yellow and red ratings, FIRE indicates the degree of freeness of expression.
Green ratings are earned by schools whose policies do not inhibit free speech. Samantha Harris, FIRE vice president of policy research, said FIRE encourages colleges to craft its policies after the Supreme Court’s First Amendment legal system to achieve a green rating.
Within the Big 10 Conference, Purdue University and University of Maryland-College Park have earned green ratings from FIRE. Both universities eliminated all speech codes, which Harris said is necessary for a school to become a green institution.
FIRE defines speech codes as policies prohibiting speech that would otherwise be protected under the First Amendment outside of campus boundaries. A policy requiring protests to be limited by assigned zones, or banning offensive language qualifies as a speech code. Harassment policies that define harassment with the words of the Supreme Court do not.
“By definition a green school does not have ‘speech codes’ because they simply don’t prohibit constitutionally protected speech,” Harris said.
Red ratings are given to schools with a policy that “clearly and substantially restricts freedom of speech,” the FIRE website stated. Red ratings are given for policies that censor student newspapers, prohibit controversial theater productions or suppress faculty opinions.
The University of Michigan and Pennsylvania State University claim red ratings in the Big 10.
Despite its red rating, Rick Fitzgerald, the director of University of Michigan’s Office of Public Affairs, said it has policies that encourage free speech.
Fitzgerald cited the university’s policy on freedom of speech and artistic expression, which calls the expression of diverse points of view “the highest importance.”
FIRE points to University of Michigan’s policy regarding “bias-related incidents,” where students can report “non-criminal activities that harm another.” Those activities can include making fun of an accent, making comments about a person’s geographic origin or insulting a person’s traditional dress.
At Pennsylvania State University, senior director of the Office of Student Conduct Danny Shaha understands why FIRE gave Pennsylvania State University its red rating. In its harassment policy, Pennsylvania State University defines “harassment” very differently from the Supreme Court’s definition of constitutionally unprotected harassment. Pennsylvania State University policy states sexual harassment includes “any verbal conduct of a sexual nature that is ‘unwanted’ or ‘inappropriate.’”
The broad definition leaves room for a substantial amount of constitutionally protected speech, Harris said, and earns Pennsylvania State University its red rating.
Shaha said FIRE’s rating is missing the next line of the harassment policy, where it states harassment must be threatening or disabling to warrant action, which follows federal regulations.
Despite its red rating, Shaha said Pennsylvania State University maintains the goal of encouraging student expression while balancing aspiration and civility.
“We’re all looking to learn from each other and engage in dialogue,” Shaha said. “But if you choose to engage in harassing behaviors the only way to be held accountable is with a policy.”
Shaha said Pennsylvania State University’s campus environment does not compare to FIRE’s stark rating. He recalled a recent time when student expression won over policy.
Before the presidential election, a group of pro-Trump students built a “pseudo-wall” around the flagpole of Old Main, a building at the hub of campus. The wall was painted with “Trump for President,” and inspired protest and support.
The erection of structures without prior approval violates Pennsylvania State University policy, but Shaha said the vice president of student affairs recognized the opportunity for peaceful presentation and dialogue.
“We knew the value of the exchange of ideas,” Shaha said.
The remaining ten institutions of the Big 10 land in the middle with yellow ratings: Ohio State University, Northwestern University, Michigan State University, University of Illinois-Urbana Champaign, the University of Minnesota-Twin Cities, Rutgers University, University of Wisconsin-Madison, University of Iowa, Indiana University and University of Nebraska-Lincoln.
Yellow rating schools hold speech codes with vague wording or ambiguous intentions, which create the opportunity for restricted speech.
UNL claims a yellow rating because of its unclear definitions regarding its policies for student code of conduct, resident rights and responsibilities, student use of outdoor spaces, sexual misconduct and bias incident response.
FIRE often collaborates with schools to help them achieve a more free environment of expression. Harris said FIRE provides a memo explaining the First Amendment problems with their policies and offering proposed solutions. FIRE is currently working with Michigan State and the University of Wisconsin-Madison to implement changes in their speech codes.
Harris said FIRE doesn’t intend to judge and label with its ratings, rather it tries to bring issues to the public’s attention. FIRE hopes potential students will consider the state of free speech in the same way they would consider student/faculty ratios and graduation rates.
Because regardless of a school’s positive statistics or accepting environment, speech codes are a violation of students’ rights, Harris said. Restrictive policies have a “chilling effect” on campuses, where students and faculty may be afraid of punishment for expressing their opinions.
“We believe the best response to speech that one disagrees with is more speech, not censorship,” Harris said. “We believe the bad ideas should be aired and debunked in the marketplace of ideas, not driven underground where they can fester and grow more dangerous.”