22 Jul 2021 | Academic Freedom, News and features, United States
[vc_row][vc_column][vc_single_image image=”117096″ img_size=”full” add_caption=”yes”][vc_column_text]A high school cheerleader has won an important victory for the right of students to express their opinions freely while off campus.
At the end of June, the US Supreme Court ruled eight to one that the rights of high school student Brandi Levy had been violated in a case dating back to 2017.
After failing to make the varsity cheerleading team, Levy had posted profanity-laced criticisms of the team roster on Snapchat while off campus at a local convenience store. The team captain kicked her off the junior varsity cheerleading team for a year as punishment.
The Supreme Court was asked to consider whether schools had the right to regulate off-campus speech; it ruled that her posts did not disrupt school operations so Levy’s rights had been violated. The court maintained that schools have a right to regulate speech in some “school-related, off-campus activities” without defining what that would look like.
David Cole, the legal director of the ACLU, called the ruling a victory for students, saying “the message from this ruling is clear – free speech is for everyone, and that includes public school students”. The director of the Pennsylvania ACLU, which represented Levy, characterised the precedent established by the ruling, saying they successfully argued that “students have greater free speech rights out of school and on their own time.”
Despite the nature of her comments, Levy was motivated to fight for her rights. She commented publicly that she was proud to have advocated for the rights of students saying, “young people need to have the ability to express themselves without worrying about being punished when they get to school”.
Recent graduates from Blake High School in Maryland broadly agree with the principle the court ruled on – that her speech did not disrupt the safety of the school.
Cole Shankel, class of 2023, said, “She’s overreacting… cheerleading is lame,” but added, “I don’t think public schools should be allowed to punish students for off-campus speech.”
Jeniffer Ventura, class of 2021, pointed out, “Being held accountable for your actions online is important,” expressing concern about online hate speech and racism affecting the safety and security of the community. Julian Kabik, also the class of 2021, stated simply, “If you are not making a deliberate threat online, then I don’t think you should be punished.”
This is the first student free speech case to favour students since the landmark 1969 case Tinker v Demois. The case considered students who had been suspended for wearing black armbands in protest at the war in Vietnam; the court ruled schools must show a substantial disruption to school operations, besides the speech being unpleasant, to restrict a student’s right to free speech.
The right of students to exercise free speech established in the case has been eroded by others since then. In 1986, Bethel v Fraser ruled that schools could regulate certain styles of expression if they were sexually vulgar. In 1989, in Hazelwood v Kuhlmeier, the court ruled schools had the right to regulate the content of school publications. In 2007, the Supreme Court ruled in Morse v Frederick that schools may restrict speech at or in view of a school-supervised event if it promoted illegal drug use. The US Court of Appeals Fourth Circuit Court in 2013 and Ninth Circuit Court in 2014 ruled a student’s dress could be restricted in two separate cases related to wearing the confederate flag or American flag, respectively. The courts ruled student dress had incited disruption, and the Supreme Court declined to hear both cases.
The Levy ruling has broken the trend in student speech law, affirming students’ off-campus rights and considering the role of extracurricular activities for the first time. A ruling against Levy would have further crippled the original 1969 ruling, allowing schools to restrict students based on their speech being unpalatable and extending a school’s authority to restrict student speech to include online and off-campus speech.
Despite this, the Levy ruling is not a decisive victory for American students’ right to free speech.
When students are on campus, schools act in loco parentis – they function in place of parents. This gives schools legal authority over minors’ rights while they are at school and formally gives all other authority over minors to their legal guardians. This doctrine and the fact that Levy was off campus when she made the posts was at the centre of the majority opinion’s arguments. Since the Levy ruling reaffirms the school’s on-campus authority over student’s rights, this aspect can be interpreted as an opening to further restrict student speech when on campus.
In questioning, some justices raised concerns about a school’s ability to punish off-campus speech that was threatening to other students. Other justices raised concerns of what schools would do with authority over off-campus speech that was politically controversial.
The justices’ questions indicate that they feel the issue of off-campus speech needs to be further unpacked. All but two of the justices are under the age of 70, and all three of former President Donald Trump’s appointments are under the age of 60. With the composition of the court being unlikely to change any time soon, the right of students to express themselves freely may yet be further eroded.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also want to read” category_id=”581″][/vc_column][/vc_row]
11 Jun 2021 | Academic Freedom, Opinion, Ruth's blog, United Kingdom
[vc_row][vc_column][vc_single_image image=”116884″ img_size=”full” add_caption=”yes”][vc_column_text]It sometimes feels like the world has gone insane. That not only have context and nuance gone out of the window but that issues which are of little, if any, importance end up leading the news and then are twisted and perverted to make them not only apparently relevant but also a matter for national discussion.
This week was definitely a case in point. Students at Magdalen College, Oxford, voted to have a picture of Her Majesty the Queen removed from their common room. They had in 2013 voted to put one up and in 2021 a new set of students decided that they wanted a different picture.
They did nothing wrong. They didn’t break the law. They had a vote (I’d argue that may align with British democratic values) and they then chose to exercise their rights to free expression in the UK. I may not agree with their choice of art – but they, like I, have the right to free expression.
You may have thought that this might have been covered in the university newspaper; it might have led to a few tweets and a little banter, maybe a joke on Have I Got News For You? You’d be wrong. The English secretary of state for education felt the need to condemn the students. It then became a leading story in the national news and op-eds and Twitter mobs duly followed.
A new story in the so-called “culture wars” emerged with various politicians and commentators attempting to suggest that this was the latest woke act to re-write British history. In my opinion it wasn’t – it was a picture of the head of state in a university common room. And it was literally an act of free expression by students (I think this might count as student politics) – which is completely legitimate.
The problem is however we are apparently living in a world where politics and events have to be viewed through the prism of these culture wars. Which is resulting in bad policy and bad politics.
The British Government is currently seeking to legislate to guarantee academic freedom, its stated rationale is to “…protect freedom of speech on campuses up and down the country, for students, academics and visiting speakers”.
In fact, when the new legislation was announced, the education secretary Gavin Williamson stated: “It is a basic human right to be able to express ourselves freely and take part in rigorous debate. Our legal system allows us to articulate views which others may disagree with as long as they don’t meet the threshold of hate speech or inciting violence. This must be defended, nowhere more so than within our world-renowned universities.
“Holding universities to account on the importance of freedom of speech in higher education is a milestone moment in fulfilling our manifesto commitment, protecting the rights of students and academics, and countering the chilling effect of censorship on campus once and for all.”
These are worthy sentiments, which I share. But given the actions this week by the members of the British government, I think we can all be a little confused by the inherent contradiction in their application of these values – that universities must guarantee freedom of thought, speech and debate but only if the Government thinks you’re right. That you can only debate or vote about things they agree with? This isn’t just bad policy, it’s the worst kind of populist and divisive politics which undermines the very fight for free speech.
One of the founding principles of Index was the need to protect academic freedom – universities are cathedrals of learning and of intellectual curiosity. Their work shapes the world and provides new thinking every day – this needs to be protected and cherished. And it’s not for governments or politicians to try and define what is and isn’t acceptable free expression on campus – it’s for the institutions themselves and on this occasion, they chose to remove a picture. And fair play to them![/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also want to read” category_id=”41669″][/vc_column][/vc_row]
14 May 2021 | Opinion, Ruth's blog, United Kingdom
[vc_row][vc_column][vc_single_image image=”116759″ img_size=”full” add_caption=”yes”][vc_column_text]As a political obsessive, I love the Queen’s Speech in the British Parliament. It marks the beginning of the new parliamentary session. It is uniquely British with all the expected pomp and ceremony and a significant amount of pageantry. But most importantly it is a restatement of our democratic values and processes. It also sets the agenda for the year ahead and makes clear what the Government is prioritising. And unfortunately, this year there were significant concerns for those of us who care about free speech.
The Queen outlined the government’s agenda and on the face of it who could object to an Online Safety Bill or a Higher Education (Freedom of Speech) Bill or even a Counter State Threats Bill. But, as ever, the devil is in the detail and the detail for too many of the British government’s proposals seems to have many, what I can only hope are unintended, consequences.
The draft Online Safety Bill proposes not only the establishment of a new category of unlawful speech in the UK – legal but harmful – but it also proposes outsourcing the regulation of free speech in the UK to Silicon Valley. Most concerningly there is no provision outlined which will let us know how much content has been removed – or even what has been removed. On the face of it, that might not seem that important but how would a victim know if they were vulnerable? How will police prosecute hate crime? And how we will be able to analyse how much of a threat to free speech this bill has become, if we have no idea of how much is deleted. The Government has suggested that they will fine companies for deleting too much content but there is no provision outlined which would allow them to assess the scale.
The Academic Freedom Bill will establish a ‘free speech champion’ to ensure that free speech protections are enacted on campus, but this week the Government couldn’t answer whether this would empower Holocaust deniers to speak on campus – or stop them. What’s likely to happen instead is that academic institutions will be so concerned about the fear of a fine or bad publicity that they will stop speakers attending campus full stop – the ultimate chilling effect.
These are just two examples of why Index has such significant concerns of the direction that government is taking on free speech.
To be clear, Index supports any and all efforts to protect our collective right to free speech across the globe and we expect the British government to take a global leadership role in defending Article 19. But what we’ve seen in this year’s Queen’s Speech does not give us hope – rather it seems to be a systematic assault on free expression by the British government, under the auspices of protecting free speech.
I am a former legislator; I know that you cannot, and you should not try to legislate culture or language – it will have the opposite effect. People won’t want to engage and our public spaces will become free of debate and challenge. We deserve so much better. Going forward we will seek to work with the British government to introduce additional protections for free speech, we must use our voice to protect yours.[/vc_column_text][/vc_column][/vc_row][vc_row][vc_column][three_column_post title=”You may also want to read” category_id=”41669″][/vc_column][/vc_row]
11 May 2021 | Academic Freedom, News and features, United Kingdom
[vc_row][vc_column][vc_column_text]Rt. Hon. Gavin Williamson MP Secretary of State for Education
Department for Education
20 Great Smith St
London, SW1P 3BT
Dear Secretary of State,
As organisations specialising in freedom of expression, we are writing to you to voice our significant concerns regarding the announcement of the Academic Freedom Bill in today’s Queen’s Speech.
There is an important discussion to be had around the state of freedom of expression in the UK’s universities. Hostile powers have felt increasingly emboldened to investigate and even sanction critical academics. Academics are having to both change their curricula and their method of teaching due to external pressures. Universities that fail to comply with government orders have had their sources of funding threatened.
All of the above threats, however, emanate from state powers – not from students. It is far from clear, therefore, that academic freedom will be strengthened by imposing more state control over universities. There is unfortunately, some evidence to suggest that there is a chilling effect on university campuses. For example, 25 per cent of students surveyed by King’s College London describing themselves as scared to express their views openly. We agree that no one should feel uncomfortable expressing their opinion on campus, however the extent to which there is a growing trend of intolerance to speech on campus is unclear. This, furthermore, is a cultural problem – and not something that a blunt legislation will be able to fix.
The extent to which “no platforming” of speakers is a growing trend also needs to be explored further, with research by the government’s own Office for Students suggesting it occurs on a very limited basis. Of more than 62,000 requests by students for external speaker events in English universities in 2017-18, only 53 were rejected by the student union or university, less than 1 per cent of the total.
This was echoed by the British Parliament’s Joint Committee on Human Rights which “did not find the wholesale censorship of debate in universities which media coverage has suggested” in their 2018 report on into Freedom of Speech in Universities, and by a recent WONKHE survey which found that of almost 10,000 events involving an external speaker in 2019-20, just six were cancelled – mainly for failing to follow basic administrative processes. This would suggest that at the very least, further research is required to fully understand the scale of the issue.
Freedom of expression is a vital right. Universities are already bound by government legislation and have a legally binding duty to support and actively encourage freedom of expression on campus, including the right to protest. Blunt statutory tools may fail to recognise the various rights at play in any given situation, for example the rights of the speaker and the rights of students to protest against that speaker. This is a delicate balancing act that universities are best placed to navigate – not state regulators or courts of law. On university campuses, freedom of expression issues are best dealt with by existing legislation and by the universities and Student Unions themselves.
We are very concerned that additional legislation, including the imposition of a “Freedom of Speech Champion”, may have the inverse effect of further limiting what is deemed “acceptable” speech on campus and introducing a chilling effect both on the content of what is taught and the scope of academic research exploration.
None of the signatory organisations have been meaningfully consulted in the development of the legislation thus far. We would welcome the opportunity for genuine engagement in the issue of academic freedom. Further research is needed on the main threats to speech on campus, while the scope of enquiry into academic freedom should be widened to encompass government interference. We therefore call for the Academic Freedom Bill to undergo a full, transparent, and meaningful period of consultation.
Signed:
Index on Censorship
English PEN
Article 19[/vc_column_text][/vc_column][/vc_row]
