Since the late 1980s, most colleges in the United States have instituted policies claiming substantial authority to punish speech deemed racist, sexist, homophobic, or otherwise uncivil, offensive, hateful, or abusive. According to the Foundation for Individual Rights in Education (FIRE), which rates college policies with regard to free speech, most institutions fall short of First Amendment standards—including public institutions, which are required to abide by them.
Several years ago, the University of Nebraska-Lincoln (UNL) revised its policies in order to enhance its authority to punish unacceptable speech. Its revised Student Code of Conduct, for example, broadly prohibits “verbal abuse” and endangering the “reputation of any person.” A September 2015 letter from FIRE, informing UNL of a downgrade in its free speech rating, noted that such language encompasses, and thus threatens, speech protected by the First Amendment.
This was not UNL’s first letter from FIRE. A letter the previous year had noted related problems and raised the possibility of a downgrade. The Academic Freedom Coalition of Nebraska (AFCON) urged UNL to review its policies in light of FIRE’s two letters, but no action was taken.
In August 2016, UNL’s new Chancellor, Ronnie Green, sent an email message to all UNL students, faculty, and staff highlighting UNL’s “newly articulated belief statements,” which had been a focus of UNL’s recent convocation for new students. The approved “beliefs on diversity and inclusion” include “freedom of speech” but immediately clarify that “we do not tolerate words and actions of hate and disrespect.”
In August 2017, undergraduate Kaitlyn Mullen set up a table promoting Turning Point USA, a conservative campus-based organization. This generated a small protest, during which at least two protesters engaged in extended hostile chants from close by, sometimes as little as a yard away.
One of these was Courtney Lawton, a graduate student and lecturer who called Mullen a “neo-fascist” (a label she rejects) and a “Becky,” a slur for white women that is sometimes translated as “bitch” but specifically suggests oral sex. Lawton also gave Mullen the finger. Thus UNL found itself faced with “words and actions of hate and disrespect.”
If a teacher in class were to treat one of her students as Lawton treated Mullen, this would be a clear violation of student rights and professional ethics. The present incident, in contrast, involved two students with no academic relationship in a public area of the campus. Even viewing this as a student/student interaction, however, Lawton clearly violated the student code of conduct, which prohibits “verbal abuse” and threats to “reputation.”
This put UNL in an impossible position. If it punished Lawton for her speech it would be violating her First Amendment rights. But if it failed to apply its code of conduct, it would be open to the charge of being more tolerant of abusive speech when that speech is directed against conservatives than when it is directed against groups favored by liberals.
Faced with no good alternative, and under pressure from donors and government officials, UNL set aside its usual procedures and tried, unsuccessfully, to satisfy everyone. It ultimately guaranteed that Lawton would never again teach at UNL while remaining vague about whether she was being disciplined and, if so, for what.
The next few months promise to be eventful. Two national organizations—the American Association of University Professors (AAUP) and FIRE, which recently sent a third letter—have challenged the treatment of Courtney Lawton on due process and First Amendment grounds. The AAUP is sending an investigatory team to Lincoln this month.
Meanwhile, the University of Nebraska central administration has been preparing a new free speech policy for consideration by the Board of Regents. Apparently not content to wait for this, a state senator has just introduced the Higher Education Free Speech Accountability Act to goad the Regents to action.
So what should UNL do? A December letter from AFCON to UNL’s Chancellor Green urged him to follow the excellent guidance in all three of FIRE’s letters. UNL should rescind its actions against Courtney Lawton and revise all its policies to conform to First Amendment standards.