Fighting Campus Injustice with FIRE

The Foundation for Individual Rights in Education (FIRE) is a non-partisan, non-profit organization with the mission of defending free speech and due process rights of college students and faculty from all across the country and political spectrum. Founded in 1999 by University of Pennsylvania Professor Alan Kors and civil rights attorney Harvey Silverglate, FIRE was born out of the 1993 “water buffalo incident” in which Kors successfully defended an orthodox Jewish student named Eden Jacobwitz, who had been accused of racial harassment based on a misunderstanding of a Hebrew to English translation. Following this incident, Kors and Silverglate co-authored The Shadow University, which led students around the country to contact them with similar claims of free speech censorship at universities. As a result, FIRE was created to protect the free speech and due process rights of students at universities across the nation.

To get the organization’s take on recent events at Dartmouth and elsewhere, The Dartmouth Review spoke with FIRE’s Director of Policy Research Samantha Harris. Ms. Harris is a graduate of Princeton University and the University of Pennsylvania Law School and is the current Director of Policy Research at FIRE.

The Dartmouth Review (TDR): Can you describe the path that brought you to FIRE and what your role is within the organization?

Samantha Harris (SH):Well I am an attorney and in college (I went to Princeton), I was a Politics major and we had two courses–one course on civil liberties and one on constitutional interpretation that I absolutely loved. At that point, I really developed an interest in constitutional law and in law school I was on the journal of constitutional law and continued to have an interest in these issues. At my law school we had a public service requirement of about 35 hours of pro bono work, and during that time I worked at FIRE.

After law school I was working at a law firm but kept my eye out for something more in line with my interests, and at that point I saw an opening at FIRE and applied. I’ve now been here for ten years since May.    My position is Director of Policy Research. If you look at FIRE’s website you’ll see that we have a database cataloging speech codes and policies restricting speech at campuses around the country. So my main role here is researching and analyzing those policies, maintaining that database and interacting with students and faculty. I speak around the country to students about speech codes and how they can work to reform them. So I work more on the education side of things, whereas another portion of the organization is dedicated to handling the cases of students who have been censored.

TDR: Can you explain how a student initiates a case with FIRE and how the process typically proceeds?

SH: Generally, students will submit a case through our website or by phone. From there, we do extensive factual checks and obtain relevant documentation. We do not litigate cases ourselves, although in some instances we help students find attorneys. Instead, FIRE operates in the ‘court of public opinion’. After validating a student’s claim, we start with a letter to the school stating our understanding of the incident and why we believe the university’s response was wrong. Usually, the university responds and corrects its action, but if this does not occur our strategy is exposure and publicity by issuing a press release and contacting the media. FIRE has consistently found that universities can’t defend in public what they try to do in private.

TDR: From your website, it seems that you get more case requests than you can take on, so what do you look for to make a case worthwhile?

SH: So we have three main criteria. First, there needs to be some sort of violation of students’ individual rights of free speech or due process.  Also, the violation must be by the university and not an affiliated organization. Finally, the university must either be public or include freedom of speech in its mission statement. Private universities unlike public ones, have the right to enact restrictions on speech, so there’s not much we can do about them. But they need to express their restrictions clearly, so for there to be no breach of contract, students need to know what they are getting into and understand the restrictions when they arrive at school.

TDR: Dartmouth is currently rated as green by FIRE; can you explain this rating?

SH: Dartmouth has had a green light ranking for a number of years. However, they have a more problematic policy that has come into being in the last few years regarding bias incidents on campus, and a lot of universities have policies like this. The policy states that “Bias-related incidents are defined as behavior which constitutes an expression of hostility against the person or property of another because of the targeted person’s age, creed, disability, ethnic or national origin, gender, gender identity, gender expression, marital status, political or social affiliation, race, religion, or sexual orientation. Even when offenders are not aware of bias or intend to offend, bias may be revealed which is worthy of a response.” Then it basically asks students to report on each other for undesirable speech. This is not a red light policy because it does not explicitly say that a student will be punished, but it is likely to have a chilling effect on free speech.

This policy came to our attention back in 2013, when there was a situation where a student spoke in mock Chinese to another student in the cafeteria. A single incident like this is protected speech, yet a Dartmouth spokesperson suggested that the person who did it would face expulsion. So at that point we wrote to the school about both the policy and this specific incident. The letter read, in part, “As long as this policy is enforced, Dartmouth students must fear unspecified consequences in protecting free speech, a tradition that Dartmouth, according to its own policies, prides and defends. This is not to say that Dartmouth may not respond with more speech to incidences of bias or intolerance, but to avoid an impermissible chilling affect on free speech, the policy must be clear that it is for educational purposes only and that students will not be subject to discipline for protected expression.”

Dartmouth replied to us that the individual had not been punished but they did not address our concerns about the policy. Because of this, we were clear with them that if Dartmouth continues to maintain the policy in its original form, FIRE will no longer be able to, in good faith, give the college our best ranking (green) for free speech. Each year we give a report on the state of free speech in our nation and the time period we collect data for this report in is from September to September. So the deadline for Dartmouth to change that policy is September in order to maintain a green rating.

Also, we have a new project going on called the Stand Up For Speech Project for speech codes. So for example, in 2013, there was a student at Modesto Junior College in California who was prohibited from handing out copies of the constitution on Constitution Day because he was outside of the school’s free speech zone.  And he brought a lawsuit against the college and won. There have been several similar free speech zone controversies over policies that restrict student demonstration to small geographic areas of campus.

TDR: Pro-Life Abortion protestors have frequently seen their speech rights trampled on campuses in recent years; has FIRE been involved in any of these cases?

SH: Yes, we’ve been involved in a number of them over the years; people get very offended, particularly when pro-life supporters have displays involving imagery of dead fetuses. Unfortunately, a lot of the time universities will side with people who were offended because there is a growing tendency for people who are offended by speech to say that it makes them feel unsafe. Then the university will say, “OK then, that speech is not allowed.” Many people seem to think that when a display goes up that they disagree with, it is their right to destroy it, but of course it isn’t. Destroying a display, much like shouting down a speaker, is not actually a valid exercise of free speech, and I think some universities get confused about this.

TDR: Can you comment on a controversy that took place at Dartmouth last term, where the Swimming/Diving team was threatened with disbandment over a mock Native American cheer?

SH: I don’t think the threat of disbandment is an appropriate response to controversial speech, but with sports teams, from a legal perspective it can be tricky whether the college has the right to discipline them for speech issues. But in terms of whether it was an appropriate response to students engaging in a mock Native American chant, I would say no. Viewing it as an opportunity for dialogue could be beneficial, sure, but the immediate response to shut down any speech that you don’t like is an unfortunate impulse we see around many campuses.

TDR: Is FIRE involved in due process violation cases regarding sexual assault?

SH: Well we have become involved in them. Due process has always been part of our mission, but until the past few years it has been a relatively small part of what we do.  Since 2010, the federal government, through the Office of Civil Rights, has become increasingly involved in the issue of sexual assault on campus and has been giving advice to universities. This has lead to a lot of universities really cracking down on sexual assault. Of course, generally, universities cracking down on sexual assaults is a good thing, but many times it is being done in a way that threatens students’ due process rights.

The federal government has required that universities switch to a “preponderance of evidence” standard and this requirement has been superimposed on college judiciaries who were already failing to give students their right to due process—in terms of the right to face an accuser, have an impartial panel, and things like that. It has created this troublesome situation where often, the presumption of innocence is cast aside and accused students are really treated pretty roughly. And even though college sanctions can’t put you in jail, a finding of sexual assault on campus is something that has serious repercussions for your future. Colleges’ hands are tied in that under Title 9, sexual assault is seen as sex discrimination and colleges must therefore address it in some way.

Personally, I think that colleges should get out of the business of investigating altogether and leave it to law enforcement and other true professionals. The best thing they can do for now is to try to make their procedures as fair as possible within the confines of the government requirements, which is why FIRE has been working on this issue from two angles. One is with individual universities and the other is working with the office of Civil Rights directly—urging them to revise their guidance and encourage universities to protect their students’ rights.

TDR: With this in mind, what is your take on Dartmouth’s new sexual assault policy where the entire investigation is undertaken by an outside investigator who essentially serves as prosecutor, judge, and jury?

SH: That sounds like what we would call a single investigator model, where you have one investigator who takes statements from both parties and where students are not allowed to confront each other at all—it is a total denial of due process. The absence of a true hearing for a charge as serious as sexual misconduct is a travesty, but very popular nowadays…the nationwide trend is towards this single investigator model. This model provides no means for students to confront their accusers and it goes well beyond what the government has suggested.

The Office of Civil rights discourages systems where students can cross examine each other directly, but has not said anything about preventing students from confronting one another or answering questions posed by a judge or third party. So these systems where one investigator is playing multiple roles are very troublesome.

TDR: You mentioned an increasing trend towards these single investigator models; if they represent such a flawed operating method, why are more schools across the nation turning to them?

SH: I don’t have a great answer for that, but I think that it has come to be seen as best practice. If schools see another school adopt a procedure and then see positive feedback from the constituencies they are interested in satisfying, then they will follow suit. I really think what it comes down to is that universities are running scared. There are currently around 106 schools under investigation for Title IX Violations and facing heavy fines. So universities are really on the defensive, I certainly don’t envy their administrators right now.

One of the main issues with Title IX is that it does not allow a cause of action based on disparate impact, so a lot of people are arguing that this process has an unfair impact on accused male students; but without solid evidence of gender bias, these cases have not been getting far. In the years we’ve been working on this issue, I think the pendulum is starting to swing back slightly in the other direction. I think people are starting to realize we went too far in the other direction, but it’s kind of “wait and see” at this point.

Lydia F. Jabs also contributed to this report.