A Balancing Act

How colleges and universities are struggling with the intersection of freedom of speech and inclusivity on campus

In the U.S., freedom of speech is a right that has always been both vehemently defended and highly contested — and nowhere has it been more utilized and criticized than on college and university campuses. But in recent years, universities have struggled to balance free speech and inclusivity, finding themselves in the center of a nationwide debate.

While incidents involving offensive speech on college campuses are not rare, recent events — such as the racist chant sung by University of Oklahoma (OU) fraternity students that was caught on video — have increased media attention on the issue. When it comes to free speech, colleges are forced to determine where the line in the sand is and whether other students’ rights have been violated.

Gale Baker, university counsel for The California State University
Gale Baker, university counsel for The California State University

“I definitely think it’s a balancing act,” says Gale Baker, university counsel for The California State University, a public university system consisting of 23 campuses across the state. “This is an institution of higher education, so we place a lot of value on open and frank discussion and free expression, but what comes with that is often opinions we don’t like — and also, the competing value of wanting a diverse and inclusive community where everyone is equally respected.”

Public universities, unlike private ones — which are allowed to regulate certain types of expression — are bound by the first amendment. But at institutions of higher education, where intellectual debate and discussion are typically encouraged — and people of all backgrounds, races, ethnicities, and belief systems come together for the purpose of learning — determining where that line falls is not always easy, Baker says.

“There can be some pretty hateful and offensive speech that doesn’t rise to the level that the law [outlines],” she says. “You’re trying to balance the rights of the speaker to express themselves — however offensive I might find them to be — while at the same time protecting the rights of those who have to listen to that speech to be protected from harassment. It can be very difficult because the law [has a] pretty high standard one must meet.”

With freedom of speech come some limitations aimed at balancing that right with others, which have been passed down over the years by the U.S. Supreme Court. Some types of speech not protected by the first amendment include fighting words, true threats, incitement to imminent lawless action, and solicitations to commit crimes. Restrictions also cover an individual’s right to not be harassed, and on college campuses, Title IX has led to limits on free speech in its protection of female students’ right to receive an education.

Vague at best, these limitations place universities in a position — between accusers and those being accused — where they feel obligated to react in one way or another. Frank LoMonte, executive director of the Student Press Law Center, says he understands why, in incidents involving offensive speech, schools might tend toward the side of the accuser.

“I’m not 100 percent unsympathetic to that,” he says. “If you are the institution, you don’t want to get a reputation for not taking discrimination complaints seriously. Nobody, understandably, wants to act like they don’t take harassment, racism, or sexism seriously. … But we do have to be a little more discerning in our response.”

Some argue that reactions to incidents like the one at OU — where the university forced the Sigma Alpha Epsilon fraternity to disband and expelled two students — reveal colleges as “image-obsessed” institutions that are quick to react when someone expresses an opinion they disagree with or that another might find offensive.

“Universities are obsessed to an unhealthy degree with control over their public appearance, and they are doing some really outlandish things in the name of preserving a positive public image,” says LoMonte. “I worry that a lot of the worst reactions we’re seeing to students’ speech … are motivated by public relations purposes and not by what is educationally responsible.”

Others also consider these differing viewpoints — whether offensive or not — an important part of the public discourse that actually contributes to a diverse and inclusive campus.

“My belief would be that inclusivity has to include people who might not agree with each other,” says Robert Shibley, “and if you want people to really understand what it’s like to get along in a diverse society, they need to learn to interact with people who have real fundamental disagreements, whether those be religious or about societal issues of the day, like abortion or gay marriage.”

Shibley is the executive director of the Foundation for Individual Rights in Education (FIRE), a nonprofit educational organization that defends individuals’ first amendment rights, including free speech, on college and university campuses nationwide.

Founded in 1998, FIRE has been tracking speech codes at about 400 of the nation’s largest and most prestigious public and private colleges and universities for nearly a decade. The results are published in its annual report, Spotlight on Speech Codes: The State of Free Speech on Our Nation’s Campuses.

“The recent rise in speech codes hails from the dawn of political correctness in the late ’80s and ’90s, when people really started to notice the phenomenon that there were some things you just weren’t allowed — or were told you weren’t allowed — to say on campus,” Shibley says.

Used as a tool to help balance free speech with other rights and to protect students — some of whom push for these protections — from offensive or hateful language, most speech codes, Shibley says, are illegal and don’t actually solve the problems they were put in place to address.

“I think people who are arguing for restrictions need to really come to terms with [whether] they are actually working, and I think my argument is no, they are not,” he says. “But what they definitely do is compromise your liberty. So by telling people who have these [potentially offensive] opinions that they have to be silent, have you actually made a better environment for people, or have you just made it look better? If you want to change minds, you have to be willing to hear the other person’s side of the story, and speech codes totally ignore that basic fact of human nature.”

For the students on the receiving end of offensive or hateful language — who are often from minority or marginalized groups — these incidents can have a negative effect on their college experience and actually inhibit their ability to learn.

Mayra Guizar, center, a senior at Western Washington University
Mayra Guizar, center, a senior at Western Washington University

Mayra Guizar, a senior at Western Washington University (WWU) in Bellingham, Wash., has spent the last four years working hard to create a campus where she and other students of color feel safe and welcome.

WWU is a predominantly white institution; its fall 2014 entering class was composed of only 3.1 percent African American, 6.6 percent Hispanic or Latino, and 2.9 percent Native American or Alaska Native students. And according to Guizar, university administrators do little to make these students feel included on campus.

“We don’t get a lot of support, and we just don’t have the resources we need,” she says. “They like to talk about how every year we have more students of color being admitted. But I think the conversations that aren’t happening are [around] how many of those students are you able to retain, and how many of those students are graduating.”

Through her role as Pacific Northwest regional chair of the United States Student Association and student body vice president for diversity, Guizar has worked with the university to improve life on campus for these students to help them feel safer and more included. Her efforts also include speaking out against hateful speech and promoting diversity across campus.

In one of her largest and most impactful efforts to date, she organized a rally last April in reaction to signs posted on campus by an outside group stating that diversity was equal to white genocide.

“We already don’t feel safe and supported on this campus, and to have this outside group come in and tell us on top of [that], that we don’t belong was really scary, really hurtful,” Guizar says. “So we decided to take things into our own hands, and in a week, we were able to get together 700 people. We marched through campus talking about what diversity really means and that it doesn’t just mean race and ethnicity.”

A diversity rally at Western Washington University in Bellingham, Wash.
A diversity rally at Western Washington University in Bellingham, Wash.

While she believes the rally played an important role in bringing to light the issues faced by minorities on campus, she says it didn’t come without resistance from university faculty and staff. “They were like, ‘No, focus on graduating; focus on your academics instead of organizing and protesting on campus.’ But something I don’t think they understand,” Guizar says, “is that the reason why we protest is because we can’t focus on academics because these things are happening. We have to protest, we have to organize — not because we want to, but because we have to.”

For Guizar, situations like this reveal a discouraging truth: that freedom of speech is a right enjoyed mostly by the majority.

“In terms of free speech, I think it always protects people [like those] who came onto campus to post those signs; that law is there to protect them. But when we call things out and say, ‘This isn’t right, we don’t feel safe on this campus, do something to protect the students,’ then the whole freedom of speech [defense] comes up,” she says. “Sometimes we’re allowed to say certain things, but that doesn’t come without pushback from the majority. That results in us further not feeling like a part of this community.”

As colleges and universities do, Guizar struggles with the intersection of inclusivity and freedom of speech. While she believes certain language causes unseen and undue harm to the receiver, she says she also understands the speaker’s right to say those things.

According to Shibley, that is the price that comes with such a privilege.

“Driving somebody out of the area to make it more comfortable for everybody else doesn’t really seem like the right way to go about achieving diversity,” he says. “I think it has the effect on students of telling them that there are some ideas that can’t even be explored. I think that’s contrary to the ideas of a university. In order to be right, you have to have the freedom to be wrong.”

And in the last year, FIRE has gone so far as to take legal action against schools that have denied students this privilege. Through its Stand Up to Speech Litigation project, FIRE is holding public colleges and universities accountable for speech codes that they find violate the first amendment rights of students, faculty, and staff.

As 10 institutions face lawsuits and underrepresented students continue to struggle with making a place for themselves on campuses nationwide, colleges and universities are left with some difficult decisions.

“As a public institution, we [at The California State University] are framed by the law. So the law tells us where the line is, and we’re precluded from taking action against someone where that line has not been crossed,” Baker says. “I think there are a lot of risks involved with making that call. You have the competing interests, the competing sets of rights, and there will be cases where it’s hard to decide whether [language] has crossed the line or not — and we want to get it right.

But there can always be a second guess down the line by a court that might decide to the contrary.”●

Alexandra Vollman is the editor of INSIGHT Into Diversity