Greg Lukianoff, a lawyer, is president of the Foundation for Individual Rights in Education.
Activists embarked on a campaign in the 1980s to eradicate hurtful, bigoted and politically incorrect speech by enacting speech codes at universities across the country. Although the movement presented itself as a forward-thinking way to make campuses welcoming, the initiative stood in stark contrast to the celebrated “free speech movement” of the 1960s, whose proponents understood that vague exceptions to free speech were inevitably used by those in power to punish opinions they dislike or disagree with. And unfortunately the effort gained momentum as prestigious institutions passed speech codes.
The legal fig leaf upon which the speech-codes movement relied was the concept of “hostile work environment” harassment. Because civil rights laws, chief among them Title IX, banned sexual discrimination on campuses, harassment jurisprudence — sometimes combined with other tenuous rationales — became the primary legal tool universities used to formulate speech codes.
Courts, however, understood that merely naming a restriction a “harassment” code did not inoculate it from First Amendment scrutiny. In nearly a dozen courtroom losses between 1989 and 2010, harassment-based speech codes have been defeated at campuses from the University of Michigan to Stanford. Amazingly, these defeats have not slowed the spread of these codes. The Foundation for Individual Rights in Education (FIRE), of which I am president, conducts an extensive annual study of campus speech codes; our 2012 report found that 65 percent of nearly 400 top colleges maintain codes that prohibit substantial amounts of clearly protected speech.
Overly broad harassment codes remain the weapon of choice on campus to punish speech that administrators dislike. In a decade fighting campus censorship, I have seen harassment defined as expressions as mild as “inappropriately directed laughter” and used to police students for references to a student government candidate as a “jerk and a fool” (at the University of Central Florida in 2006) and a factually verifiable if unflattering piece on Islamic extremism in a conservative student magazine (at Tufts University in 2007). Other examples abound. Worryingly, such broad codes and heavy-handed enforcement are teaching a generation of students that it may be safer to keep their mouths shut when important or controversial issues arise. Such illiberal lessons on how to live in a free society are poison to freewheeling debate and thought experimentation and, therefore, to the innovative thinking that both higher education and our democracy need.
The Education Department’s Office for Civil Rights (OCR), which enforces Title IX on college campuses, tried in 2003 to put a stop to the “government made me do it” excuse for speech codes. It issued a letter to every college receiving federal funds — so, virtually all — making clear that harassment requires a serious pattern of discriminatory behavior, not just mere offense. Since then, the number of campus speech codes has slowly begun to decline.