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Robert Shibley and I Examine ‘Why Speech Codes Endure’
Today over at the Pope Center blog, FIRE Senior VP Robert Shibley and I try to get to the bottom of why campus speech codes are still alive and kicking:
Campus speech codes are losers, both in the court of law and the court of public opinion. They expose campuses to liability in free speech lawsuits and mockery in the media. No fewer than two dozen speech codes have been defeated in court or withdrawn after a lawsuit was filed since the dawn of the modern campus speech codes era in the late 1980s.
So why then do campus speech codes and selective censorship endure? It’s likely the result of a confluence of factors that have been at work for decades now: the dramatic expansion of the bureaucratic class at universities; a campus culture that encourages both a “right not to be offended” and the idea of “free speech for me but not for thee;” and legal and regulatory incentives that often make free speech the last concern of university lawyers.
The last point there is often missed. Speech codes endure partially because the legal incentives to keep them encourage administrators to overreact to speech, not protect it. I think there is little hope in stopping campus speech codes if the legal incentives are not reset:
In order for the attitude of those in charge on campuses to change it’s necessary to alter the cost-benefit analysis they perform. There are a number of ways to do this.
Perhaps the most obvious is that colleges need to have more fear of First Amendment lawsuits and the resulting embarrassment. This could be accomplished several ways: a larger number of lawsuits, larger attorneys’ fees and judgments in such lawsuits, the piercing of the “qualified immunity” that keeps administrators off the hook for their terrible decisions, greater awareness of the problem, and greater media attention to it.
Full article here.
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Weeding out the administrator class would help a lot. They are a terrible burden as enrollment falls.
Agreed, but their ranks keep swelling with many colleges dumping profs and keeping admins.
In college I came to the conclusion that the school administrators just take the path of least resistance. That path is almost always not to offend the left wing activists, because running afoul of them scares the administrators more than running afoul of campus conservatives. Left wingers are pretty much merciless in their protestations and threats when they feel someone has offended their ideals, while conservatives are generally more polite and civil in their disagreements. This isn’t likely to change any time soon.
The lawfare incentive is very much on point. In a prior life I was responsible for a significant government funded activity for an educational institution. When an issue came up regarding a procurement and a demand not to engage in a discriminatory award of a subcontract (social justice), the incentives definitely favored the aggrieved party bringing a lawsuit rather than doing the right thing in not engaging in a discriminatory act. If the court mandated the outcome you could turn to the group who had lost the discriminatory benefit and say ” I tried but the court wouldn’t let me act for social justice.” That relieved you of pressure from those seeking social justice. And you did not have to defend to your colleagues a decision to not engage in social justice.
Perhaps the most obvious is that colleges need to have more fear of First Amendment lawsuits and the resulting embarrassment. This could be accomplished several ways: a larger number of lawsuits, larger attorneys’ fees and judgments in such lawsuits, the piercing of the “qualified immunity” that keeps administrators off the hook for their terrible decisions, greater awareness of the problem, and greater media attention to it.
This could apply to a lot of other situations as well. This is surely going to be a shield used by ObamaCare administrators. They will be “protected”.
Although speech codes may get overturned when challenged in the courts, they’ll survive until every single one of them is overturned individually. The left will always do whatever it can get away with, and in each instance won’t stop until compelled to do so.