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Education Law

: Edjurist

The Restrictiveness of Student Speech Codes

By Justin Bathon

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There was an interesting back and forth between Thomas Sowell ( RealClearPolitics - their daily summary is one stop shopping for political articles) and Eugene Volokh (the Volokh Conspiracy - my favorite legal blog). The debate is over the relative restrictiveness of campus speech codes in schools, universities in particular. Not surprisingly, the debate started with Berkeley and their recent rebuke of Marine Corp recruiters. This event of course irritated conservatives (check out this Tucker Carlson tirade) including Thomas Sowell who had this to say:

Liberals in general, and academics in particular, like to boast of their open-mindedness and acceptance of non-conformity. But they mean not conforming to the norms of society at large.

They have little or no tolerance to those who do not conform to the norms of academic political correctness. Nowhere else in America is free speech so restricted as on academic campuses with speech codes.

In response, Eugene Volokh said:

I have often criticized campus speech codes -- but I think we need to put them in perspective: Speech on campuses (at least outside graded class projects, which necessarily must be evaluated based on their content) is generally far more free of institutional punishment than speech in many other places.

The obvious example, which probably affects about ten times more people than do campus speech codes, is restrictions on speech in workplaces. In most workplaces (again, university workplaces are in some measure something of an exception) speech is quite seriously restricted.

...

We notice campus speech codes, I think, in part precisely because student speech is otherwise so generally protected, both at public and private universities. In my experience, academics -- certainly including liberal ones -- are actually quite tolerant of a wide range of criticism, and generally speaking wouldn't try to restrict the sort of speech that is routinely restricted in workplaces (again, consider most criticism of the institution or even of named faculty members). Against this decades-old tradition of broad student free speech, the restrictions on allegedly racist, sexist, anti-gay, and similar speech stand out as exceptions. I'm glad they stand out, and I'm happy to condemn them as generally unconstitutional (in public universities) and generally improper (in all universities). But we shouldn't let these exceptions blind us to the broader rule, and view campuses as unusually speech-restrictive places, where in reality they are quite speech-protective places.

I certainly have to agree with Eugene here. You can attack schools and universities for being a lot of things, but overly restrictive of free speech probably isn't one of them. How many business do you know that set up and area on their campus for daily protests? How many businesses do you know that would allow employees to wear Korn and ICP other t-shirts (sorry that was the popular t-shirt to wear when I was in the classroom, it may have changed by now). The point is that student speech, while sometimes not as protected as adult speech such as in K-12 schools, is generally not as restricted as speech in other places, such as the workplace and now even public workplaces under Garcetti. You can make the argument that academic institutions are too liberal, but to say that such liberalness has become legally restrictive of conservative views is a bit too far.

Full post as published by Edjurist on February 24, 2008 (boomark / email).