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Missing the Point About Speech Codes

October 17, 2017

Susan Herbst posits in Inside Higher Education that colleges can do a better job of managing student incivility through education about civil discourse and the creation of new civility policies.   Her premise is sound.  Colleges can encourage civility in more effective and less constitutionally intrusive ways.  However, her proposed methods for change are fundamentally flawed. 

One of the problems is that she starts off on the wrong foot: "We have moved away from 'hate speech' codes because they are difficult to get right; they do have a tendency to trample on forms of free speech that really aren’t dangerous at all."  Speech codes and so-called "hate" speech policies do trample free speech, but about 70% of public colleges and university still have one (or more) on the books.  I don't know who has "moved away" from them, but most colleges have not. 

The problems continue.  Herbst argues that colleges should start using civility codes instead of "hate" speech policies and should teach students that civil discourse is more effective.  As an example, she points towards Penn State's "Principles" for students.  But Penn State's Principles read like a speech code: 

Actions motivated by hate, prejudice, or intolerance violate this principle. I will not engage in any behaviors that compromise or demean the dignity of individuals or groups, including intimidation, stalking, harassment, discrimination, taunting, ridiculing, insulting, or acts of violence. I will demonstrate respect for others by striving to learn from differences between people, ideas, and opinions and by avoiding behaviors that inhibit the ability of other community members to feel safe or welcome as they pursue their academic goals.

Colleges must be careful in creating these aspirational policies.  Penn State created these aspirations only after A.J. Fluehr sued over its former speech code, which stated "acts of intolerance will not be tolerated."  Needless to say, he won.  Penn State claims the Principles are not a policy, but an administrator could easily accuse a student of violating these principles and then charge the student with a violation of another part of the student handbook (e.g., harassment is prohibited in both the Principles and the student code of conduct). 

Civility codes are not constitutional.  San Francisco State University required students to "be civil" on campus.  A student used that policy to file a complaint about the College Republicansand force a university investigation.  SFSU eventually revised the policy, but only after a federal court struck down the policy as facially overbroad.   The problem with civility codes is that they have a chilling effect on student speech and can be applied in a discriminatory manner--allowing some to speak, but not others.  Herbst should be familiar with this problem, as her employer was suedby two students who were silenced under Georgia Tech's "acts of intolerance" policy.  (They also won in court.) 

Colleges can do a better job of encouraging students to engage in civil discourse.  But civility codes are not the answer.

Alliance Defending Freedom

Alliance Defending Freedom

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Alliance Defending Freedom advocates for your right to freely live out your faith


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