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Back in September I wrote about a student who was literally told he could not hand out copies of the U.S. Constitution on Constitution Day (September 17th) at Modesto Junior College (MJC) in California. With the assistance of my organization, the Foundation for Individual Rights in Education, student Robert Van Tuinen and Washington, D.C. law firm Davis Wright Tremaine filed a First Amendment lawsuit against MJC soon after.
We got word just last night that the college has finally signed a settlement agreement with Van Tuinen. As part of the settlement, MJC has substantially reformed its policies and agreed to pay Van Tuinen $50,000.
The victory in this case is an important one for free speech on college campuses, but it is only one in a long history of successful challenges to campus speech codes starting way back in 1989. Despite the fact that campus speech codes lose consistently and overwhelmingly both in the court of public opinion and in the courts of law, FIRE has nonetheless found that 59% of colleges maintain what we call “red light speech codes.” These are policies that utterly and dramatically fail to live up to First Amendment standards. And, believe it or not, this percentage is actually an improvement.
When we first started publishing our extensive survey of campus speech codes, 75% of colleges had red light codes. That number has steadily come down in recent years in large part due to FIRE’s effective advocacy, including our Speech Code of the Month feature, a series of successful lawsuits by groups including FIRE, the Alliance Defense Fund, the ACLU, and smaller groups like Ohio’s 1851 Center for Constitutional Law, as well as student pushback. Despite all of that, however, the number of schools maintaining campus speech codes is still miserably high.
A big part of the problem is that university general counsels have come to believe that it’s probably safer to maintain unconstitutional codes that punish speech offensive to some students than it is to defend the free speech rights of all students. The only way we can reset this misguided cost-benefit analysis is for more students like Robert Van Tuinen to challenge their college’s speech codes in court. Once university general counsels start realizing that their institutions could actually lose money by maintaining ridiculous speech codes, then we stand a fighting chance to finally defeat campus speech codes nationwide.
Of course, even if you re-calibrate the cold calculus of university general counsels, there will still be administrators and students who passionately believe that students have a right not to be offended. This attitude must be overcome, but resetting the legal incentives is an utterly essential first step to victory.