Freedom to err
University policies violate students’ free speech rights
Earlier this month, the College of William & Mary earned a "green light" speech code rating from the Foundation for Individual Rights in Education (FIRE). William & Mary is one of eleven schools in the nation to be granted green light status for removing "serious threats to students' free speech rights in the policies on that campus." While still maintaining policies against discrimination and harassment, William & Mary successfully revised the legal presentation of those policies to ensure that their enforcement would not limit constitutionally protected speech on campus. The University, on the other hand, lags in the protection of students' First Amendment Rights in comparison to William & Mary's recent reforms. According to FIRE, the University deserves a "red light" rating (the lowest speech code rating) for implementing policies "that both clearly and substantially restricts freedom of speech."
A great difficulty exists in maintaining the balance between protecting freedom of speech while simultaneously maintaining the rights of individuals to learn in an environment free from undue harassment. Unfortunately, University policy has chosen to err on the side of the politically correct and placed students' First Amendment rights in statutory jeopardy by allowing policies to stand that limit the content of free speech on Grounds. According to the office of the Vice President for Student Affairs, "The University is committed to supporting the exercise of any right guaranteed to individuals by the Constitution and the Code of Virginia and to educating students relative to their responsibilities." While those sentiments are noble, the implementation of school policy runs counter to the stated ideals of this institution. The problem lies in a number of ambiguously worded University statutes regarding harassment, bias, and electronic expression.
The most disturbing of University policies currently in place is one against bias that encourages the "reporting of bias complaints so that [the University] can investigate the alleged facts for possible violation(s) of University policy, including the Standards of Conduct, and refer such complaints to law enforcement to determine whether an independent investigation for violation(s) of criminal law is warranted." The danger in that policy is encompassed in the definition of a bias complaint which bars students from participating in, among other activities, vaguely defined "acts of bigotry." While a student behaving in a close-minded manner is morally regrettable, the idea that the University reserves the right to censor this type of activity boarders on absurdity. The University is an institution for higher learning where all ideas can be voiced. When a communication is generated that falls under the definition of constitutionally protected speech, University authority should never intervene to restrict the opinion. Individuals possess the sole responsibility for countering the argument.
One of the negative consequences of statutes that arbitrarily grant the University the power to regulate expression is that often the University in turn delegates that power to student groups. These student groups, such as the University Judiciary Committee and Student Council, can then wield this authority to push their own political agendas. For instance, in 2008, Student Council used the University's policies banning bias as justification for denying the Edmund Burke Society status as a Contracted Individual Organization (CIO) on Grounds. Student Council justified their decision by claiming that the Burke Society practiced intellectual segregation because of a clause in their constitution which stated that the club was for "conservative-minded students." Student Council used the broadly defined bias statute found in University policy to limit constitutionally protected rights of freedom of speech and freedom of assembly.
By attempting to eliminate the likelihood of bias against certain segments of the population, the University created a policy tool that is used to discriminate. The institutionalization of discrimination through the restriction of speech on Grounds is worse than any discrimination which would have persisted otherwise. As Jefferson commented, "Subject opinion to coercion: whom will you make your inquisitors? Fallible men, governed by bad passions, by private as well as public reasons." The University's speech code has given the University establishment the power to restrict legal speech through punitive measures. This goes against the basic democratic principles of both the University and the Constitution.
The purpose of anti-bias statutes like the University's are certainly admirable; however, the punitive powers attached to their enforcement are counter-productive. When the power is given to the University establishment to decide what constitutes inappropriate language, the University is simply exchanging one form of bias for another. That institutional bias proves a far greater danger to truth than the harm caused by individuals that discriminate. Increasing the diversity of opinions decreases this risk by allowing for the un-prohibited expression of alternative voices. The University should follow the example set by William & Mary and revise their speech codes so that legally-protected speech can be voiced without punitive consequence.
Ginny Robinson's column appears Wednesdays in The Cavalier Daily. She can be reached at firstname.lastname@example.org.