Title IX, Codes of Conduct May Conflict With First Amendment On Campus

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Colleges and universities often walk a fine line when it comes to free speech. Institutes of higher education promote themselves as places where students go to debate and refine ideas and opinions. Ideally, this creates an enriching experience for all involved. But many schools place limits on acceptable discourse in an effort to encourage civility and respect.

“Speech codes” at colleges and universities have led to increasing accusations that schools are trying to silence students, bar certain speakers from campus, or otherwise restrict the right of free speech. Popular movements on campus have also contributed, mobilizing support for “de-platforming” controversial speakers.

A watchdog organization, the Foundation for Individual Rights in Education, recently analyzed the written policies at 466 schools and found that nearly 90 percent restricted or did not adequately protect free speech.

While public universities must respect the First Amendment, private schools have greater leeway in creating their own speech codes. However, these schools typically model policies on the Constitution, and they must then abide by the guarantees they promise.

The law of free speech is not simple. Supreme Court cases have established certain limits on protected speech. For example, writings or speech considered to be defamatory, harassing, or a direct incitement to violence do not fall under the protection of the First Amendment.

Unfortunately, these exceptions are frequently invoked to justify overly broad speech codes that can shut down protected speech as well. There is no exception to the First Amendment for hate speech, however odious. Policies that prohibit hate speech or “bullying” are intended to promote civility.  Some policies try to enforce civility on the internet. But this can result in punishment simply because a student or faculty member posts something offensive to someone else.

Campus policies can be internally contradictory and sow confusion. For example, FIRE gave Georgetown University high marks for its free speech policy, which declares, “concerns about civility and mutual respect can never be used as a justification for closing off the discussion of ideas, no matter how offensive or disagreeable …”

Yet the university still earned FIRE’s lowest rating overall, since it punishes “incivility,” i.e. language or actions showing disrespect toward another member of the campus community.

Speech codes and Title IX law

Campus speech codes are often designed to combat perceived hate speech, or statements that disparage a person or group. Campuses especially target disparagement on the basis of race, religion, national origin, or sexual orientation. These codes are intended to make the campus environment welcoming to all. To their proponents, they are rooted in a desire for equality.

While well-intentioned, this easily leads to overreach. The University of Connecticut is one of the most notable examples.

Its former code (since thrown out in federal court) banned commonplace social occurrences such as “inappropriately directed laughter” or “conspicuous exclusions from conversations and/or classroom discussions.”

Free speech issues also quickly overlap with Title IX rules against sex discrimination. For example, one student at a state university in Massachusetts sought the help of experienced Title IX defense lawyers when he posted a montage of lyrics by established rap artists to Instagram. His ex-girlfriend claimed this demeaned her and filed a Title IX complaint that led to months of investigation before he was ultimately cleared.

Under the law of Title IX, sex discrimination or sexual harassment creates a hostile environment whenever it is severe, persistent, or pervasive enough to create a hostile environment. Clearly, sexual harassment can arise in the context of the speech, such as pervasive insults on the basis of sex directed at the victim of abuse.

But as with the student’s rap lyrics above, this has led to enforcement of Title IX based on little more than protestations of insult. Some schools have no procedure for dismissing frivolous Title IX complaints, and a full investigation must follow.

As interpreted by the federal courts, harassment under Title IX must also be “objectively offensive.” But school misconduct proceedings sometimes ignore the federal law.  Only public universities must respect constitutional rights to free speech; private universities are at liberty to define code violations more narrowly. They can do so as long as they follow their own policies consistently.

Many schools continue to base their speech policies on older guidelines from the Department of Education which states that the mere fact that a student finds a statement offensive is not enough to constitute harassment. Speech must be “sufficiently serious to deny or limit a student’s ability to participate in or benefit from the education program.” Persistent sexual harassment is grounds for discipline but, for example, themes assigned in a classroom that a student finds sexually degrading are not.

The Freedom Forum Institute recommends that schools take care in deciding what not to tolerate, and that speech which creates discomfort in the learning environment should not be an offense in and of itself. The American Civil Liberties Union argues for a case-by-case approach in determining when conduct crosses the line from free speech to creating a hostile environment.

Free speech zones

Another controversial campus policy is the “free speech zone.” The idea of a free speech zone dates back to the civil rights movement. It was originally intended to provide a place for students to demonstrate without disrupting campus activities. This presumes, however, that freedom of speech is not the norm and should be confined to a small zone.

Over the years, some schools have established small, restricted areas as the only places where students can demonstrate, pass out literature, or otherwise exercise First Amendment rights. FIRE estimates that about 800,000 students attend colleges or universities that restrict student expression through free speech zones.

Free speech zones are often miniscule, pushed off to isolated corners, or otherwise designed to place de facto limitations on expression. They usually crumble when challenged. Students punished for violating campus speech codes have sought experienced education law attorneys and successfully fought their universities in court. In addition, due to lobbying, some state legislatures have banned free speech zones outright.

Colleges and universities can and do place some restrictions on speech or the freedom to associate, usually to prevent disruptions to campus activities or avoid safety hazards. For example, universities may limit the hours when loudspeakers can be used at a demonstration, bar demonstrations from classrooms where courses are taking place, or prohibit tables from being set up in front of emergency exits.

Free speech on campus is bound to remain controversial. This is nowhere more evident than in the “de-platforming” of controversial speakers. Student protesters have asserted their right to a “heckler’s veto.” This occurs when a school hosts a speaker but does not prevent audience members from jeering, drowning out, or otherwise interrupting the speech. The heckler’s veto presents a case where the speech rights of one party are directly opposed to the speech rights of another. No one can be heard appropriately, no matter how loudly they shout, if another is shouting just as loudly at the same time. The First Amendment protects speakers from state action; it does not protect speakers from private citizens’ protests.

Some speeches on campus have been canceled due to fears of campus security. Universities justify this, not in terms of speech rights or speech codes, but in terms of public safety.