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Protecting Campus Speech, Part 1


This week, NC Family president John Rustin talks with Robert Shibley, executive director of the Foundation for Individual Rights in Higher Education (or FIRE), about freedom of speech on college and university campuses in North Carolina, and how we can better protect academic freedom.

Robert Shibley discusses freedom of speech

“Family Policy Matters”
Transcript: Protecting Campus Speech, Part 1

INTRODUCTION: Robert Shibley is Executive Director of the Foundation for Individual Rights in Higher Education, or FIRE. His organization’s mission is to defend and sustain individual rights at America’s colleges and universities, including freedom of speech and religious liberty. He’s going to be talking with us about ways that we can help ensure freedom of speech for all students on our college and university campuses.

JOHN RUSTIN: I want to start our conversation by asking you to define what we mean by free speech on campus, and why it is such a critical part of the academic environment for students, for professors, and other staff as well?

ROBERT SHIBLEY: Free speech is especially important on campus because campuses are meant to be the ultimate marketplace of ideas in a free society. Campuses are intended to be, and they’re supposed to function as, the place where students as young adults, who have the right to vote, have the right to participate in our democracy, and get to discuss all of the things that interest them. And they also get to discuss visions or opinions that might end up being erroneous, that they might end up deciding are wrong later, but they need to be allowed to be wrong in order for them to truly get a classically liberal education. You need to be able to explore, not just whether or not you’re right according to what other people believe, but why you are right. You need to believe your own belief, not just as a prejudice because people tell you they’re right, but because you’ve actually thought through it and you now actually have reasons for believing the things that you do. If you don’t do that, you’re not having education, you’re having propaganda, and that’s what’s happening on all too many campuses today.

JOHN RUSTIN: So, what we’re really talking about is intellectual honesty, and having the college and university campuses be a “free speech zone,” so to speak, so that students are free to explore thoughts, ideas, and do so in an environment that’s conducive to the growth of intellect?

ROBERT SHIBLEY: That’s right, and you know we hear these days a lot about “safe spaces” on campus. People say, “Oh, it’s not safe for people of a certain race or gender or what have you.” But I think we need to be more concerned if anything about whether or not it’s actually safe to disagree. Whether or not it’s safe to be wrong on campus. And by safe, I mean, actually students are regularly put on campus trial and threatened with the loss of their education and disruption of their careers for saying or thinking and expressing the wrong thing on campus.

JOHN RUSTIN: In addition to “safe zones,” we also hear the term “speech code.” What is a speech code on a college campus, and is this a good thing or bad thing for a university to have in place?

ROBERT SHIBLEY: It’s a bad thing. What FIRE classifies as speech codes is any regulation that goes further than the Constitution would allow on public campuses, or a private institution’s own promises of free speech would allow on private institutions, which by the way are not bound by the First Amendment. And those don’t have to be labeled speech codes, and they very rarely are. They’re often found in places like sexual harassment codes, racial harassment codes, generally anything with the word “harassment” in it. You see it in policies on the usage of email; you can see it in demonstration policies. I can’t tell you how many times we’ve had cases where students are actually stopped simply from handing out pamphlets, which is one of the most heavily protected things you can do in the United States. So, a speech code is any regulation that compromises those rights.

JOHN RUSTIN: I noticed that North Carolina did not appear this year on FIRE’s list of the Top 10 Worst colleges for free speech, which is good news. Tell us about the schools that did make the “worst” list, and why?

ROBERT SHIBLEY: First of all I think it is really good news that the University of North Carolina did not appear on the list this year, and in fact, UNC Chapel Hill is actually a green light school. And we rate speech codes on a red light, yellow light, green light scheme. For red light being the most restrictive, and the most unlawful, if it’s a public university, green of course having no such restrictions. And we were happy that in 2015, we were able to work with the University of North Carolina at Chapel Hill to eliminate all their speech codes, so they’re now one of only about 25 I think out of the speech code-free universities out of the 430 we rate. 

JOHN RUSTIN: Interesting. What were some of the schools that did make that list?

ROBERT SHIBLEY: You have unfortunately a lot more choices when it comes to the 10 worst colleges for free speech. One that really made a lot of news recently was Mount St. Mary’s University, which is a small university in Maryland. In that case, the president there actually fired a professor and the newspaper’s faculty advisor after they reported on something that he had said. He said, and this made a lot of national news, that they needed to be more brutal about cutting out students very early on who they thought couldn’t do the work, and he said, “You think of the students as cuddly bunnies, but you just have to drown the bunnies and put a glock to their head.” And so by reporting these things, which he doesn’t deny that he said, the student newspaper apparently upset him, and his punishment for that was firing the two professors who were involved in that situation. Ultimately, that lead to a lot of backlash because it seemed so unjust, and in fact was unjust, and now it’s actually the president who ended up resigning.

JOHN RUSTIN: Wow. Robert, you’ve talked a little bit about the rating system that you use, the green light, yellow light, and red light system. Explain if you would, and maybe give some examples of the specific university policies that you look at when you are determining a school’s rating.

ROBERT SHIBLEY: We often look first to harassment policies because they very often impinge on speech, because harassment of course is a course of action that can include expression that rises to the level where it’s no longer lawful. Most speech in the United States is protected by the First Amendment, even unpleasant speech. For example, the speech by the people of the Westborough Baptist Church for instance, or the Klu Klux Klan—that is protected speech. But when that rises to a level of harassment, when it’s targeted, discriminatory, and it is severe, pervasive and objectively offensive to somebody whose trying to get an education, then it does in fact stop having First Amendment protection. Unfortunately, a lot of universities aren’t very careful about what they consider to be harassment. So, for instance, a few years ago at Davidson college, they supposedly banned the use of terms like girl, boy, honey, hunk, doll, sweetie and other terms like that and just deemed those to be harassment. Now, I don’t believe for one minute that Davidson was going around finding everybody who did that and punishing them, but unfortunately what these policies do is they make everyone a lawbreaker in the eyes of the campus authorities. Everybody has broken a rule, and so if they want to punish someone for saying something politically incorrect, for believing an unpopular belief, they’ve always got something they can fine them and punish them for. It reminds me of the famous founder basically of the KGB, who said, “You show me the man and I’ll find you the crime.” And that’s how almost every university with these red light speech codes operates, there’s always a crime if they want to get the man or the woman they can always find some reason to do so.

JOHN RUSTIN: It sounds like political correctness just run amuck.

ROBERT SHIBLEY: Well it is. A lot of people sort of thought that political correctness died after really coming into disrepute back in the early 90s, but in fact it was institutionalized sort of under other names. But if anything I think people are recognizing that now it does seem to have come to another head of ridiculousness these days. People are recognizing, “Oh, political correctness is back.” It’s an interesting development because for FIRE’s 16 years old, and at the beginning of FIRE’s existence we had to do a lot of arguing letting people know, “By the way there is still political correctness folks,” people get in trouble for what they say! We weren’t believed, but now everybody believes us!

JOHN RUSTIN: Now we’ve talked a little bit about that there were no North Carolina colleges in the top ten worst campus list, but in general, how are North Carolina colleges and universities doing when it comes to the issue of free speech on campus. How does our state compare to others?

ROBERT SHIBLEY: North Carolina is actually better than most other states. I don’t think we rated it by states in our last report, but I know two years ago North Carolina was the third best state, so you would get that from dividing the number of schools that we rate by the number of schools that have red lights. And I would expect North Carolina to be similarly good this year because the University of North Carolina at Chapel Hill has eliminated its last speech codes. Now, other universities are increasingly eliminating their speech codes, thanks a lot to FIRE’s pushing into a lawsuit, a litigation program that we initiated a couple years back. And for the first time last year since we’ve started rating 8 years ago, less than half of schools that we rate have red light speech codes. And we rate most of them, 430 schools across the country, including all the biggest and most prestigious. So, our first year it was 79 percent, but now it’s down to 49 percent. And, that’s a big improvement, but of course that does mean that 49 percent of schools are still flagrantly violating the law. Yellow light schools are also quite arguably violating the Constitution as well, in fact they probably are, but it’s not quite as severe.

JOHN RUSTIN: I noticed that East Carolina University in Greenville, North Carolina is one of the schools rated with a red light on FIRE’s database. Why is that?

ROBERT SHIBLEY: It goes right to their harassment policy, as is the usual custom here. It’s their definition of sexual harassment that’s problematic. ECU says that sexual harassment is “conduct of a sexual nature that includes unwelcome sexual advances, requests for sexual favors, jokes about sex or sexual orientation, other verbal/non-verbal physical conduct of a sexual nature creating a hostile environment.” The problem here is that is so vague and over-broad. Number one, it’s too vague to understand, you know, “other verbal conduct of a sexual nature,” what does that even include? I mean does that include asking someone out on a date; they mention sexual orientation, does that mean opposition or support for that matter of gay marriage? We’ve seen that be banded about as sexual harassment before. So, when you have something this broad, nobody can figure out what it means. And also we know that it touches a lot of speech that is protected.

JOHN RUSTIN: Being a Tarheel myself I was encouraged to hear what you shared earlier with our listeners that UNC-Chapel Hill has been rated a green light. Tell us a little bit more beyond just the elimination of speech codes. What is UNC-Chapel Hill doing well that other universities and the state can learn from.

ROBERT SHIBLEY: I think the main thing that distinguished UNC-Chapel Hill was after years and years of going back and forth with FIRE about their policies, and we’ve had more cases with UNC-Chapel Hill than with many other schools. It used to be sort of a Christmas tradition for us as a matter of fact! I think two or three years in a row Chapel Hill would make a blunder, and we would have to call them on it around the Christmas season. But I guess the leadership has changed, and maybe attitudes have changed a little bit as well, and now we’re really happy that the current people in office there have come to FIRE and decided to work with us instead of running over and over right up against the Constitution. FIRE, we actually employ two full-time attorneys, one from an Ivy League school, just to work for colleges and universities for free of course, to change their policies. FIRE is a charity. There’s actually a whole industry of folks who charge a lot of money to work on university policies. We do it for free, and we try to get you compliant with the Constitution. And so we’re always looking for more schools to do that, and I would invite any school in the University of North Carolina system, or private school, to call us up and we’re happy to work with you.

JOHN RUSTIN: That’s great and as opposed to creating an adversarial relationship if the university and college leadership can come together with FIRE and work together, there’s certainly some positive ground that can be made there.

Well, Robert, [before we go] if a student, professor or other staff person on a college or university campus feels that their academic freedom or free speech rights have been infringed upon, what would you recommend that they do?

ROBERT SHIBLEY: I would recommend that they visit FIRE’s website at We may have answers on the website, and if not, please submit a case or a question to us, and we will try to help.

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