Every year, FIRE releases its invaluable speech-code report, and every year the university establishment greets it with stony silence. Sure, the comment-board trolls emerge blinking into the sunlight to hurl baseless accusations of bias or to defend speech codes with this or that discredited rationale. But where are the university presidents? Where is the AAUP?
FIRE is transparent: The evaluated codes can be seen in their entirety on its website. FIRE’s methodology is sound: The codes are evaluated according to established, uniform precedent. Indeed, it is remarkable — given the hundreds of different judges and courts across this land — that a speech code has never been upheld. While it seems absurd to believe such uniformity can continue (in the religious-freedom arena, for example, courts sometimes rule against equal access in spite of decades of Supreme Court precedent), we have so far found the one issue that unites Carter, Reagan, Bush I, Clinton, and Bush II appointees — the marketplace of ideas on campus.
By failing to comment, however, universities can kill the story. There is a free-speech crisis in American universities, but there is no free-speech “scandal” in the sense of widespread public outrage. And with no scandal, there is little incentive for reform.
I’m reminded of my testimony before the Pennsylvania House’s Select Committee on Student Academic Freedom. After describing how the vast majority of Pennsylvania public universities maintained policies that violated the rights of every single one of their tens of thousands of students, a member of the committee called the investigation a “colossal waste of time.”
The scene is familiar. Yellow police tape stretches across the road, the chalk outlines of overturned speech codes litter the ground, and in the distance one hears the rumble of incoming litigation. Yet our friendly administrator is on the scene, and with a dismissive wave he says, “Move along. Nothing to see here.”