The Foundation for Individual Rights in Education wants students to know not just their First Amendment rights, but yours.
BY CECILIA CAPUZZI SIMON, The New York Times, October 25, 2016 >>
The free-speech watchdog FIRE is a familiar irritant to college administrators, but until this past year, the rest of the country wasn’t paying much attention. An “epic” year is what Greg Lukianoff, president and chief executive of the Foundation for Individual Rights in Education, calls it. Colleges and universities were forced to publicly and painfully deal with a confluence of national issues — race, sexual assault, gay rights, politically correct speech — mirrored and magnified in the microcosm of campus life.
Finally, FIRE’s activism was syncing with the zeitgeist, in part because of Mr. Lukianoff’s role in framing the public interpretation of the campus turmoil. It was Mr. Lukianoff who made the argument, in a widely readopinion piece in The Atlantic, that today’s students are “coddled” and demanding protections against offensive words and ideas at the expense of intellectual rigor and the First Amendment. It was also Mr. Lukianoff who happened to be at Yale during the infamous Halloween costume shout-down of Prof. Nicholas Christakis, and whose viral video of it appeared to vividly illustrate his observations that many college students don’t understand what freedom of speech is, and who it applies to.
Freedom of speech, he said, is not an “intuitive” concept, and Americans take its benefits for granted. “I think everyone understands that they have a free-speech right, but they don’t necessarily understand why you should have one,” he said, sitting in his eighth-floor office in FIRE’s satellite space in Washington.
Mr. Lukianoff, a First Amendment lawyer who joined FIRE in 2001 after a stint at the American Civil Liberties Union, has been on an “ongoing campaign to trick people” into understanding those rights.
The ultimate goal? “Change the culture,” he said, adding quickly. “I am under no illusion that I can do that, but I keep trying.”
FIRE was started in 1999 by Harvey A. Silverglate, a criminal and civil rights lawyer in Boston, and Alan Charles Kors, now a University of Pennsylvania history professor. They met as Princeton undergraduates, and in 1998 wrote “The Shadow University: The Betrayal of Liberty on America’s Campuses.” The book is an exhaustive recounting of administrators’ abuses of freedom of speech and due process, and a warning that the academy was being undermined by speech codes — restrictions that colleges and universities began to put in place in the 1980s, in part to protect the growing minority student population from racial intolerance.
The book, Mr. Silverglate said, resulted in a “tsunami of letters and calls” from college students and faculty members seeking help, and he and Dr. Kors set up a nonprofit foundation with a network of volunteers. They expected FIRE to last for 10 years. “The progression things have taken, which I feared, I thought I could prevent,” Mr. Silverglate said. “But I did not.”
FIRE’s mission has not changed, but interest from conservative groups has. Conservatives, Mr. Silverglate explained, are “seriously squeezed in the academic world” and finding their causes “suddenly coinciding with our agenda.” FIRE receives funding from groups like the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation and the Charles Koch Institute. (The institute just co-sponsored a reception for a screening of “Can We Take a Joke?,” a new documentary on free speech and comedy that FIRE helped produce.) FIRE bristles at the right-wing tag often applied to them. They say they are a free-speech group, period.
In many ways, their work has become even more complicated. Most significantly, students are, wittingly or not, becoming vocal opponents of free speech by demanding protections and safe spaces from offensive words and behaviors.
“Something changed,” Mr. Lukianoff said. “I don’t entirely know why.” But he can date the shift: October 2013, at Brown University, when the New York City police commissioner, Raymond Kelly, was invited to speak but was shouted down by students over his support of stop-and-frisk practices.
“I count that as the symbolic beginning because that’s when we noticed an uptick in student press for disinvitations, trigger warnings and microaggression policing,” he said. “That doesn’t mean administrators have stopped doing goofy things, but now they can say, at least more convincingly, that they are being told by students that they need to do those things.”
A 2016 Gallup survey bears out his concerns.
• Asked if colleges should have policies against slurs and other intentionally offensive language, 69 percent of students said yes, while 27 percent believed they should be able to restrict expression of potentially offensive political views. And 63 percent wanted schools to restrict costumes that stereotype racial or ethnic groups.
• While 76 percent agreed that students should not be able to prevent the news media from covering campus protests, nearly half supported reasons for curtailing that coverage: biased reporting (49 percent), the right to be left alone when protesting (48 percent) and the right to tell their own story on the internet and social media (44 percent). For black students, percentages are higher (66 percent, 61 percent and 54 percent).
• Black students were least sanguine about the right to peaceable assembly: 60 percent saw it as threatened, compared with 29 percent of white students.
• Over all, 54 percent polled said the climate on their campus “prevents some people from saying things they believe because others might find them offensive.”
The chill can affect teaching as well. Potentially offending material is being removed from curriculums; trigger warnings are included in syllabuses; and even tenured faculty are seeing career-ending reprisals by wading into discussions or using words that could be construed as racism or sexual harassment.
Just ask Teresa Buchanan, who was fired from her tenured position as an associate professor of education at Louisiana State University. FIRE is subsidizing her suit against the university, filed in January.
Ms. Buchanan, who had taught at L.S.U. for two decades, had been approved for promotion to full professor. But several students complained that she had an abrasive and disparaging style, used profanity and sexual slang in the classroom, and made off-color jokes — one, about how quality of sex gets worse the longer the relationship.
Ms. Buchanan described herself as blunt, and called her language and humor a “pedagogical strategy” to toughen up future teachers for work in communities where such language and hostile interactions are common. But L.S.U. fired her, saying she had violated its sexual harassment policy, though students had not accused her of that. The university, citing Department of Education advisements regarding Title IX, maintains it is following the law.
Ms. Buchanan’s suit cites violations of freedom of speech rights and due process. But her case, said Robert Corn-Revere, a high-profile lawyer who works with FIRE’s litigation program, is also about “the bigger picture — the widespread use of Title IX to violate First Amendment rights.”
Title IX prohibits discrimination based on sex in federally funded educational programs. In the last five years, as the government has worked to crack down on sexual assault on campus, it has broadened the definitionof sexual harassment to “any unwelcome conduct of a sexual nature” and eliminated a protection that such conduct had to be offensive to a reasonable person.
In April, the Justice Department cemented the definition in a letter to the University of New Mexico, which was under investigation for Title IX violations, said Will Creeley, FIRE vice president of legal and public advocacy. The letter, which faults the university for lacking proper channels to report sexual harassment and sexual assault, could have significant implications: It makes clear that any complaint of a sexual nature — say, someone finds offense in an overheard Amy Schumer joke — must be investigated even if no one claims it created a “hostile environment,” a threshold set by the Supreme Court. This “invites censorship,” Mr. Creeley said.
The University of New Mexico president, Robert G. Frank, agreed that universities had a responsibility to maintain an atmosphere free of verbal sexual harassment. But the federal government, he said in an email, “offers no specific guidance” on how to do that “in the real world without infringing on free speech,” especially at universities where “the exchange of controversial or sensitive ideas is woven into the fabric of academe.”
Universities investigated for violations of Title IX, or those that do not adequately investigate charges of sexual assault or harassment, face lengthy and expensive investigations — 246 cases are currently under investigation at 195 campuses. Those found guilty, public or private, could lose federal funding.
Understanding Title IX, Mr. Lukianoff said, “is not sexy and it’s complicated, but it is the secret engine as to why universities overreact” in creating and enforcing speech codes and in charges of harassment or sexual assault. “When people say, ‘Look how crazy our universities have gotten,’ they need to understand that they are being pushed with a very scary threat,” he said. “They’re not just scared of loss of funding. They’re scared of the investigations.” Colleges and universities, he said, are being “asked to do the impossible.”
There are other groups that fight for First Amendment rights on campus, but none as vocal — or pushy — as FIRE, which has gone public with 421 interventions on behalf of aggrieved students and faculty members over almost two decades (many more have been resolved privately).
The organization, which has headquarters in Philadelphia across the street from Independence Hall, has nearly doubled its staff, to 35, in the last two years. In 2015, FIRE received 807 inquiries from students and professors seeking assistance in fighting perceived civil rights violations, up from 719 in 2014. About 50 will fit FIRE’s “narrow focus” on civil liberties defense, said Peter Bonilla, director of its individual rights defense program. The most egregious get litigated through FIRE’s two-year-old litigation program, which targets violations at public colleges (only public institutions, which are arms of the government, are directly bound by the First Amendment).
A lawsuit is FIRE’s tactic of last resort, especially when it comes to speech codes. In about 90 percent of cases, it uses “persuasion,” as staff members call it, to get administrators to revise or revoke questionable parts of a code. Depending on the level of “obstinacy,” Mr. Bonilla said, “the levers of publicity” — news releases, op-eds, media appearances — kick in. Most administrators, wary of bad press or an expensive suit, eliminate the speech codes.
As Mr. Lukianoff likes to note, FIRE has not lost a speech-code legal challenge yet. (He recounts many of them in his 2014 book, “Unlearning Liberty: Campus Censorship and the End of American Debate.”)
The group also works proactively with campuses. Its Policy Reform Project has a database of conduct guidelines from 440 four-year institutions, and it publishes a ranking of schools based on them. FIRE has slowly encouraged many on the list to rewrite their rules. In 2007, 75 percent had at least one policy restricting speech. Last year, that was down to 49 percent.
“I admire FIRE enormously,” said Harvey Klehr, a professor of politics and history at Emory University who took an unpopular position last spring against student protesters who said they felt threatened by pro-Trump slogans chalked around campus. “Far too many universities persist in having speech codes,” he said. “It’s very important work calling them into account.”
But FIRE’s strategies have not endeared it to many campus officials.
Martha Compton, director of community standards and student responsibility at Ohio University, said administrators are often “put off by FIRE’s heavy-handedness.” Ms. Compton was named in a suit charging that administrators ordered a student group to remove T-shirts bearing the double entendre “We Get You Off for Free” (the group defends students in campus disciplinary actions). She says they never told students not to wear the shirts. The university settled for $32,000.
When FIRE got involved, she said, things escalated. She found out about the suit in a Twitter post from FIRE. “From FIRE’s standpoint, they do what they need to get institutions to respond,” she said, “but there’s often a cost”: Administrators who might reach out for guidance on free speech matters do not, afraid “they may open themselves up for a suit or public humiliation.”
Critics also charge that FIRE draws attention from real problems, including sexual assault or racism, by filtering them through the First Amendment lens and inserting itself into campus politics to serve its own agenda.
They point to Mr. Lukianoff’s involvement in the Yale shout-down. He was on campus that day last November because he was invited by Nicholas Christakis and his wife, Erika, to speak at Silliman College, a campus residence where the Christakises were “co-masters.” Ms. Christakis had sent an email to Silliman students in response to a directive from Yale’s Intercultural Affairs Committee advising students to avoid culturally insensitive Halloween costumes. Ms. Christakis reminded students that they were autonomous and mature, and to reflect on the consequences of an institutional “exercise of implied control over college students.”
The email did not play well, especially with minority students who read it as further evidence that faculty and staff were insensitive to the challenges they face on campus. For about an hour, students surrounded and disparaged Mr. Christakis. One shouted that he was “disgusting.”
As seen in Mr. Lukianoff’s video, the students had no interest in hearing Mr. Christakis’s entreaty for an open forum and, almost threateningly, shut down his right to speak. But there are plenty at Yale who believe the video narrowly and unfairly depicted the event to fit a narrative of so-called crybullies whining to be protected at the expense of others’ rights.
The video was “tremendously effective, but cruelly so,” said Jim Sleeper, a lecturer in political science at Yale and a vocal critic of FIRE. Matthew Frye Jacobson, a professor of American studies, history and African-American studies at Yale, said that FIRE’s spin, and the subsequent storm of media coverage, was “a complete misconstruction of what happened.”
“The cultural affairs committee made its statement about Halloween costumes,” he said. “The Christakises critiqued that; the students critiqued them. Then everyone in the world criticized the students. From beginning to end, it was never a matter of free speech.”
That argument, Mr. Lukianoff said, “lacks intellectual honesty.”
Still, the incident reverberated in ways FIRE probably did not intend. At a campus conference the next day, Mr. Lukianoff was tripped up by his own free speech in remarks about Erika Christakis’s email. Describing the firestorm, he said, “You would think that given the reaction to what she had written that she had actually wiped out an Indian village.” Protests followed.
Katie McCleary, a Little Shell Chippewa student raised on the Crow Reservation in Montana, is a Yale junior who was active in the protests. “I would not seek out FIRE even though they say they are founded for reasons of defending students who feel their voice is lost,” she said. “It seems like a specific kind of lost voice that they are interested in. It’s usually a voice that’s racist and says things that are immoral. I’d rather speak for myself.”
Like many American colleges and universities, Yale is working to create a diverse student body but struggling to provide sufficient support for the minority students it recruits. Those students are now speaking up loudly and in sometimes unpleasant ways because, as Ms. McCleary indicates, they believe their “speech” is too rarefied and angry to be heard and defended, even by a First Amendment group like FIRE.
Mr. Silverglate, who made his reputation defending radicals and protesters since the Vietnam War, objects: “Communists, labor organizers, war protesters — they are the people responsible for the majority of great First Amendment law. We don’t care what you say. If you are penalized for it, we’re there.”