Five Texas schools were found in a recent report to have speech codes that substantially restrict students’ First Amendment rights, an issue that an expert calls the most pressing one in higher education today.
Sam Houston State University, University of Houston, University of North Texas and University of Texas at Austin and Dallas received “red-light” ratings from the Foundation for Individual Rights in Education (FIRE), which means they each have at least one policy that clearly restricts students’ freedom of speech. These codes range from overly broad sexual harassment policies to internet usage guidelines that give a blanket definition for what’s considered offensive.
In fact, all five Texas schools that received red-light notations from FIRE in 2018 had some form of broad or vague sexual discrimination or harassment policy. The University of North Texas, for example, defines sexual harassment as “unwelcome conduct of a sexual nature including but not limited to unwelcome sexual advances, requests for sexual favors, sexual violence and other verbal, nonverbal or physical conduct of a sexual nature.”
Samantha Harris, vice president of policy research at FIRE, said such conduct must be pervasive, objectively offensive and severe enough to affect the learning environment to not be protected speech, a standard established by the 1999 U.S. Supreme Court case Davis vs. Monroe County Board of Education.
“We always advise schools to set their policies to meet the Davis standard,” Harris told The Texas Monitor.
Instead, schools often establish all-encompassing policies that lean more toward preventing any type of harassment — to the detriment of free speech, FIRE says. The organization notes on its website that the growth of speech codes in the 1990s converged with the expansion of Title IX, the federal law that prohibits sexual discrimination in education institutions that receive federal funds.
“These overly broad sexual harassment policies are very common,” Harris said.
She also pointed to Sam Houston State University’s acceptable use policy for the internet, which includes forbidding students from “intentionally accessing, creating, storing or transmitting material which SHSU may deem to be offensive, indecent or obscene.”
“This policy was very poorly crafted because it could apply to an expression of political opinion that someone at the university finds offensive,” Harris said.
Stephanie Knific, spokeswoman for SHSU, told The Texas Monitor in an email that of the two policies that FIRE had deemed as meriting its red-light rating — the internet usage and a code for student conduct — “one has already been corrected and one is under review.”
“Each year, a number of university policies come under review,” she wrote. “In regards to the policies referenced in the FIRE report, both were submitted for review in 2018. The computer policy was updated and includes a revision to the restrictions section.”
None of the other four Texas schools on FIRE’s red-light list responded to requests for comment on their speech codes.
Thomas Lindsay, director of the Center for Innovation in Education at the Texas Public Policy Foundation, says “freedom of speech is the precondition for all political discussion,” yet he believes that universities are “becoming among the least tolerant places for free speech in America.”
“It is frustrating when you see how many millennials and members of Generation Z believe social justice trumps the First Amendment,” he told The Texas Monitor.
But that tide may be turning. Lindsay noted that the University of Chicago released a statement condemning safe spaces, free speech zones and other impediments to free speech that has been co-signed by a few dozen schools that include Princeton, Columbia, Purdue and LSU — but none in Texas.
However, the Texas Legislature considered a bill last year to protect free speech on college campuses in the state. The legislation passed along party lines in the Senate, but not in the House.
While some see the issue as pressing, others say such legislation would just be redundant, arguing such speech is already codified in the U.S. and Texas constitutions.
“What would [lawmakers] mandate? The First Amendment? It’s already been mandated by the 55 framers of the Constitution, so theirs would just be a redundancy,” Ron Trowbridge, a trustee at Lone State College, told the Texas Tribune.
Republican Lt. Gov. Dan Patrick has directed the Senate State Affairs Committee to study whether the free speech rights of students are being infringed upon at Texas universities in advance of the 2019 legislative session.
Patrick was inspired to issue that directive after state Rep. Briscoe Cain, R-Deer Park, wrote the lieutenant governor about the speech he attempted to give at Texas Southern University that was interrupted and eventually canceled last fall. Cain, among the most conservative members of the Legislature, said Black Lives Matter protesters bullied university officials into preventing him from speaking.
“That initiative bodes well for the future of free speech and American democracy,” Lindsay said of Patrick’s study, “because you can’t have the latter without the former.”
Nationally, things are looking at least moderately better on college campuses. Slightly less than one-third of surveyed institutions got red-light ratings from FIRE this year, compared to nearly 40 percent in 2017. Thirty-seven schools got green-light ratings in 2018, compared to just eight in 2009.
But most schools still have questionable speech codes — nearly 59 percent received yellow-light ratings. This means they have policies that restrict narrower categories of speech than those red-light codes, but still can easily suppress protected speech with vague wording.
“The overwhelming majority of schools still have unconstitutional speech codes,” Harris said. “So there’s a lot of work still to be done.”
Johnny Kampis can be reached at [email protected].