This piece was originally written for the Foundation for Individual Rights in Education (FIRE), which the foundation has graciously allowed ACTA to republish.
Last month, the American Council of Trustees and Alumni wrote a letter to the trustees of the University of Pennsylvania to express concern about Penn’s treatment of law professor Amy Wax and about the fact that Penn recently lost its long-standing “green light” rating from FIRE.
Penn was one of FIRE’s original green light institutions. For years, FIRE held it up as a model to other schools not only for its policies but also for how it handled free speech controversies in practice. Lately, though, Penn has begun to falter in policy and in practice. Sadly, its current administration doesn’t seem to care terribly much.
Last year, FIRE wrote to University of Pennsylvania Law School Dean Ted Ruger to express concern over Penn Law’s decision to strip Amy Wax of her first-year courses. (As an alumna of Penn Law with a particular interest in free speech at my alma mater, I authored that letter.) For years, Penn Law has been under intense pressure to punish Wax for her unpopular views on race and immigration. Following an online petition demanding Wax’s removal from teaching required courses, Dean Ruger acquiesced, alleging that she had violated grading confidentiality policies when she made comments about black student performance on the podcast of Brown University economics professor Glenn Loury. While acknowledging Penn’s right to enforce confidentiality policies, FIRE expressed skepticism about the timing of Ruger’s decision:
FIRE respects Penn Law’s right to enforce its policies on the confidentiality of student grades, so long as those policies are fairly and consistently enforced. However, such policies must not be used pretextually to punish Wax for the substance of her views, and your administration must resist the pressure to take action against her for those views.
Meanwhile, in FIRE’s newly released 2020 speech code report, we announced that Penn had lost its longstanding green light speech code rating. After discovering that several Penn policies had been amended in ways that threatened free speech, FIRE wrote to Penn in January 2019 asking them to revise those policies. We received no response.
FIRE’s concern is with two Penn policies concerning sexual harassment, both of which define the term in a way that threatens protected speech. The Guide to the University of Pennsylvania Sexual Harassment Policy, for example, defines sexual harassment as (among other things) any unwanted verbal conduct that “has the purpose or effect … of creating an intimidating, hostile, or offensive working or study environment.” This overbroad formulation is a far cry from the definition set forth by the Supreme Court in Davis v. Monroe County Board of Education, which covers only conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” As my colleague Robert Shibley recently explained, the Davis standard is the only definition “that can sufficiently protect freedom of expression while also prohibiting real sexual harassment on college campuses.”
Unlike Davis, Penn’s definition contains no requirements of severity, pervasiveness, or — perhaps most critically — objective offensiveness, leaving open the possibility that even a single instance of speech that someone finds subjectively offensive could be punished as harassment.
When the American Council of Trustees and Alumni wrote to Penn last month, it chastised the university for losing its green light rating, noting that “the loss of Penn’s ‘Green Light’ rating should … be an alarm bell that causes the campus to commit to a better culture of free speech and inquiry.” In response, Penn wrote that it was aware of the new “yellow light” rating, but stated, “This rating is not related to Penn’s Open Expression policies or practices, which continue to receive a green light rating from FIRE. The University of Pennsylvania is committed to academic freedom and will continue to ensure our policies are supportive of academic freedom.”
Penn’s response misrepresents, in two critical ways, what the university’s yellow light rating means. Given that Penn may be responding along these lines to anyone who expresses concern over FIRE’s decision to revoke its green light rating, we felt it was important to set the record straight.
First of all, if a school maintains a stated commitment to free expression (a policy that will typically earn a green light on its own) but also maintains speech codes that threaten or prohibit protected speech, this is not a badge of honor, as Penn’s letter seems to suggest. Rather, it is a mark of internal inconsistency at best and hypocrisy at worst. If Penn had wanted to “continue to ensure” its policies protected academic freedom, it would have responded to FIRE’s concerns and revised its speech codes. As it stands, Penn maintains sexual harassment policies that pose a direct threat to academic freedom — just witness the number of faculty around the country who are disciplined for germane classroom speech under overly broad sexual harassment policies like Penn’s.
Secondly, Penn states that its “policies or practices” on open expression continue to receive a green light from FIRE. This statement is simply false. As we have explained in the past, FIRE’s traffic-light speech code ratings are based on the extent to which a university’s written policies, not its practices, do or do not threaten protected speech. My colleague Azhar Majeed ably explained this distinction in a recent post:
We take this approach for multiple reasons, not the least of which is that it allows us to accurately and consistently grade colleges across the country in terms of how their written policies protect free speech. Put differently, it allows us to compare apples to apples.
Conversely, comparing and grading schools based on numerous other factors — such as cases of censorship, student- or faculty-led calls for punishment of protected speech, and other incidents — would almost certainly lead to inconsistent results. FIRE lacks complete information about such actions at many database schools, given varying degrees of media coverage and scrutiny at institutions. The same act of censorship at, say, Harvard University is much more likely to be picked up in media reporting than at a small public university that tends to have a more regional or state-based focus. We may simply be unaware of basic violations at a particular school if no one reports on it and if the student or professor whose rights were violated never comes forward — a problem that does not exist when FIRE assigns our Spotlight ratings based on colleges’ publicly available, speech-related policies.
Acts of censorship on campus are addressed separately, through FIRE’s Individual Rights Defense Program, which writes to universities when they behave in a manner inconsistent with free speech and academic freedom — such as when we wrote to Penn about its treatment of Amy Wax.
Simply put, Penn cannot — as it tries to do in its letter to ACTA — avoid scrutiny of its speech codes and its practices by hiding behind its open expression policies. If anything, those policies only serve as a reminder of how far Penn has fallen.
Samantha Harris is the Vice President for Procedural Advocacy at the Foundation for Individual Rights in Education.