BY JOHN K. WILSON
The Foundation for Individual Rights in Education (FIRE) has released a Model Code of Student Conduct for colleges to adopt, and it’s a tremendous advance for student liberties on campus. All colleges should adopt this Model Code (with slight improvements, I believe). Too many colleges have vague and repressive provisions in conduct codes, and providing a good guide for colleges is an important step toward improving these speech codes.
Although FIRE’s Model Code is an improvement upon just about every single conduct code currently in place, it still has some flaws that I think should be fixed.
My first complaint with this Model Code is what’s missing. The Model Code should add a positive statement of student rights. FIRE does include a list of procedural rights and that’s good, but it needs to add substantive rights as well. Many other colleges have statements of student rights (see the University of Michigan) and this statement is an extremely valuable way to express positive support for free expression on campus, rather than the purely negative task of listing what is punishable.
The second flaw in the Code is this provision: “This Code incorporates all other College rules regarding Student conduct….” This provision is a little bit dangerous. Making students subject to discipline if they violate any campus rule is a flawed approach. FIRE does add a requirement that “The rule does not conflict with this Code or with the rights of Students.” But that’s not nearly good enough. Most campus rules are about issues not covered in the Conduct Code. And as I’ve pointed out, FIRE fails to define the substantive rights of students, so this provision offers no extra protections. There are two reasons to avoid this “incorporation” rule. First, it increases the danger that a poorly written rule somewhere on campus will be used to punish students, and undermines all the hard work put into the carefully written conduct code. Second, there are many cases where reasonable rules apply to specific areas of campus but should not be the basis of general punishment. For example, a student with overdue library books can be fined or restricted from borrowing more, but that doesn’t mean they should be disciplined by the college for the offense. A student may be rude to their roommates and deserve to be thrown out of student housing, but it doesn’t follow that they should be expelled from the university for violating the student housing rules if they haven’t violated any of the general conduct rules. There is no good reason to open a giant loophole like this in a conduct code.
My last objection to FIRE’s Model Code is this provision: “Substantially and materially disrupting the normal operations of the College, or inciting others to do so, is prohibited. Students shall not intentionally cause a substantial and material disruption ….” I worry that “disruption” rules are too vague (there’s a good reason why the criminal code doesn’t criminalize “disruption”) and should generally be avoided, but they are very common in academia, sadly. There is no reason for any “disruption” rules at all; criminal laws against trespassing and other crimes almost always are adequate. Compared to most disruption clauses, FIRE’s rule is very good, because of the “substantially” and “materially” and “intentionally cause” provisions. However, there is one serious problem in the model code: “inciting others to do so.” Incitement clauses are generally unnecessary and can be subject to abuse. Normally, “incitement” applies only to serious criminal activity. If you incite violence, or a riot, that can be punishable. Incitement to disrupt is very squishy territory, legally speaking. The combination of a vague “disruption” standard with a vague “inciting” standard is a very bad idea. And there is no need for this incitement provision (this is the only place in the model code where incitement is punished). Disruption should be limited to the actual violation of someone’s rights.
I would encourage FIRE to revise its model code to improve it, but even in its current flawed form, this code of conduct is an important advancement that colleges should look to. All colleges should consider reforming their conduct codes to follow FIRE’s model, and explain why they deviate from this standard.
At a time when students are protesting across the country for improving laws, policies, and procedures to better protect people from the abuses of government power, we need to examine how we can improve campus conduct codes to ensure that the rights of students to protest and speak out are fully defended.
I’m not sure why “FIRE” feels either the need, or the legitimate authority, to wedge itself in the higher education market, except that’s what they do: this is just commercial opportunism disguised as national policy.
FIRE certainly can be productive, and I’ve enjoyed their company on a public television program interview we did on university free speech principles. But they are a law firm. They like contention, and make a living as provocateurs.
They have brought to light some constitutional abuse from the prior administration, but this “code of conduct” is not just self-important grandstanding; it inherently misses the entire philosophical feebleness of behavioral codes: they merely reinforce student conformity and create a weak model of student socialisation.
This is on top of a plethora of soft behavioral contracts that students already submit to including grades, degrees, recommendations, graduate employment, and in some cases like UChicago’s “Principles,” an ex- ante legal warrant that threatens them with punishment based on vague behavioral deviations deemed in violation of institutional privilege.
You might argue that FIRE’s Code helps soften these kinds of university intrusions. But the best defense a student, or faculty have, is an aggressive lawyer that knows what advocacy is. The FIRE contract merely tees up a contractual dispute and feeds the law bar. Politely say “no, thank you.”
The whole campus free speech contention is overblown anyway. What are the stakes of debate? Are they substantive issues like, say, the vector performance anomaly of nanoparticulate polemerization in solar cell coatings, or perhaps the post-modern deconstruction of Hegelian anti-realism, or perhaps pass-through properties of accelerated depreciation in leveraged tax losses? No, it’s “transgender bathrooms” or other response to identity provocation by the political class. Even war protesting is now considered so “1970s.”
Universities and special interest players like FIRE need to get out of the speech business. Behavioral codes are mere infantilization of young adults; they are deluged with it already, and now it’s “distancing;” “lockdowns;” “home quarantine;” “kneeling,” “health passports,” Real ID, and more social engineering saturation that is turning the college campus into a militarized indoctrination and processing center.
The great relic of the modern university may soon be the independent mind. See my Wall Street Journal Article, “The Government and Free Speech on Campus:” https://www.wsj.com/articles/the-government-and-free-speech-on-campus-1510000926. Regards.