In my 2008 book, Patriotic Correctness: Academic Freedom and Its Enemies, I did something similar, examining all of the colleges given a “green light” rating by FIRE and finding many flaws in their speech codes, including one college (Elizabeth City State University in North Carolina) that had the worst speech code I'd ever encountered. Here's what I wrote:
The campus rules include some downright silly provisions, prohibiting “making a loud noise,” “playing musical instruments,” and “repeated failure to keep residence hall room clean.” More alarmingly, the speech code punishes students merely for “association with others who are openly engaging in a prohibited activity.” Students must immediately squeal on their friends or face the same penalty. Worst of all, the rules impose automatic suspension without a hearing any student accused of “hate crimes that show evidence of prejudicial treatment or speech based on one's race, religion, sexual orientation or ethnicity” or even “any behavior or disorder that impedes, hinders or prevents the attainment of educational, research, or other goals of the University related to the mutual process of teaching and learning.” Just imagine being summarily suspended for “hindering” the “attainment” of “goals.”
Since then, FIRE has downgraded ECSU to a yellow rating, which is still a better rating than most colleges. However, ECSU still has the very same incredibly restrictive speech code imposed on their students.
Here are the flaws in the speech codes at the seven colleges identified by FIRE as the best in America:
Arizona State's Code of Conduct is a terrible speech code. For example, it bans “Unauthorized access to, disclosure of, or use of any university document.” In other words, if someone leaked a university document to the campus newspaper, the students who published such a newsworthy document could be punished. It includes vaguely-worded bans on “Interfering with or disrupting university or university-sponsored activities.” It prohibits “Engaging in harassment” but doesn't define the term. And it prohibits “Use, possession, display, or storage of any weapon” on university property, a category that explicitly includes mace and all “martial arts weapons,” whatever that means. And it bans “supporting, promoting, or sponsoring hazing.” So if a student disagreed with the ban on hazing and expressed support for hazing, that student could be punished merely for supporting it. Finally, ASU has a catch-all provision punishing students for any “Violation of, or attempt to violate, other rules that may be adopted by ABOR or by the university.” So students can be expelled for violating any university rules, even if they aren't in the code of conduct.
Dartmouth has a catch-all rule that is among the worst in the country: “In general, any conduct which interferes with the College’s responsibility to protect the health and safety of its members or visitors, to protect College property or the property of others, to carry out its functions, or to provide its members and others with services would also be in violation of this standard.” The rest of the code of conduct is not too bad, but this single provision makes all of that unimportant. Under this catch-all provision, any student who does anything that “interferes” with the College's desire to “carry out its functions” (meaning just about anything the College does) can be punished.
The University of Pennsylvania actually has a positive statement on student rights, but still has some deeply flawed parts of its code of conduct, such as the vague requirement “To refrain from conduct towards other students that infringes upon the Rights of Student Citizenship.” The code requires students “To cooperate fully and honestly in the Student Judicial System of the University.” This violates the right of students not to incriminate themselves. If the university wants to punish a student, they should prove their case, and not be able to punish the student for failing to cooperate fully in his or her own prosecution. Finally, the University of Pennsylvania offers a common catch-all rule that allows students to be punished for violating any policy of the university not listed in the code, or even a policy of a particular department that has never been approved by the university, since students are required “to comply with policies and regulations of the University and its departments.”
Carnegie Mellon's Community Standards include this broad catchall: “Examples of violations of community standards in relation to integrity include, but are not limited to:” In other words, nothing in the college's code of conduct provides a limit on enforcement, but simply offers examples. Even some of these examples are troubling, though:
“Using a message system for obscene, libelous or defamatory purposes.” If a person's message is obscene or libelous, why should the university be regulating it? Carnegie Mellon also bans the undefinable “Other acts that compromise the integrity of the academic process.” And the code prohibits “Violations of the Carnegie Mellon Basic Building Etiquette,” but I can't find any description online of what “Basic Building Etiquette” might be.
The University of Tennessee at Knoxville's conduct code prohibits “Disorderly conduct or lewd, indecent, or obscene conduct on university-owned or controlled property or at university-sponsored or supervised functions.” In addition to this vague ban, it prohibits “Inciting other students to violate written university policies or regulations,” a broad provision that covers a lot of protected free speech urging civil disobedience.
The University of Virginia declares that “an honor offense is defined as an intentional act of lying, cheating or stealing,” making it one of the few colleges that punishes students for any lies they might tell.
The College of William and Mary has several vague provisions in its code of conduct, including a particularly bad rule on hazing: “Apathy or acquiescence in the presence of hazing are not considered neutral acts; they are violations of this rule.” It is remarkable that any college thinks it can punish students for the crime of “apathy.”
The College of William and Mary has the vague catch-all rule against “Violating any College policy, rule, or regulation.” Another rule bans “abusing the student conduct system” which is seemingly unlimited in its scope, but particularly includes “refusing to appear, testify, or remain present during an official College hearing or meeting with any person connected with the disciplinary or honor processes.” This is a fundamental violation of an individual's right not to give self-incriminating testimony.
Another rule threatens to punish students for “Hosting guests who violate College Policy. All guests are expected to abide by College regulations. Students are responsible for the behavior of their guests and may be sanctioned for violations committed by their guests.” Again, it is fundamentally wrong to punish students for the violations committed by others that they could not predict and did not know about.
William and Mary's Weapons Policy includes a ban on undefined “other weapons” as well as “realistic-looking toy firearms, knives, or swords.”
But the most bizarre rule at William and Mary is a ban on “Engaging in conduct that infringes on the rights of others,” an extremely vague provision explained only by this footnote that says, “Examples include: exposing one's own genitals, buttocks, or breasts in a public place...” I'm not sure how the exposure of breasts infringes upon my rights (in fact, I firmly reject this theory). But hilariously enough, because the university tried to be political correct and not specify any gender, this rule also prohibits male breasts from being exposed. That's right: William and Mary bans men from being shirtless in public places, whether it's the campus swimming pool or the quad. Nor does this rule explain whether women who expose part of their breasts (i.e., cleavage) would be subject to the ban.
But the bigger problem with this rule is that the man boob ban is only an example of what violates the rules. We have no idea what “conduct that infringes on the rights of others” means. Presumably, if being offended by breasts is deemed a violation of your rights, being offended by all sorts of expression could also qualify under this same rule. If you're more offended by the N-word than bare breasts, does that mean the N-word should be prohibited on campus?
Of course, the actual wording of a speech code is not the most important factor in the state of liberty on campus. FIRE's description of each ideal campus tends to emphasize the actual practice of free speech on campus (most often a recent repeal of a restrictive policy).
What does all this mean? First, it means that some of the hysteria about “speech codes” is overblown, a point I made in my first book, The Myth of Political Correctness: The Conservative Attack on Higher Education. A bad provision in a speech code does not mean colleges are totalitarian spaces. To the contrary, college campuses are generally the freest institutions in American society. So long as reasonable people interpret these speech codes, there is often little to fear.
But speech codes do matter. A bad speech code is a ticking time bomb waiting for an incompetent or misguided administrator to abuse it. We need to criticize and revise flawed speech codes, and improve them to protect the rights of everyone on campus. And that's what makes FIRE's celebration of these colleges so objectionable. By pretending that these colleges have no problems with their speech codes, FIRE is taking away an opportunity to continue improving the state of freedom on these campuses.
One reason why many of these “best” colleges were honored by FIRE is because they went through the process of scrutinizing their policies and consciously adopting greater free speech on campus. That's something that shouldn't end. FIRE should be praising some of the actions of these colleges while continuing to criticize the flaws in their speech codes.
Free speech on campus requires a constant process of debate and discussion about the meaning of liberty.