No private post-secondary educational institution shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private post-secondary institution, is protected from government restriction by the First Amendment to the United States Constitution.
-California Education Code § 94367
This statute, popularly known as the Leonard Law, accords the students of private universities in California the same right to freedom of speech as that enjoyed by every U.S. citizen. Stanford has had a rocky history with the law since it was passed in 1992, from a 1994 lawsuit (which the University lost) to a case that gained notoriety this summer in which the School of Education threatened and attempted to silence a student whose outspoken views were deemed out of sync with the school’s ideology. The Foundation for Individual Rights in Education (FIRE), a non-profit civil liberties group that specializes in university free speech cases, has argued that Stanford remains out of compliance with the Leonard Law and has accordingly given the University a “red light” rating, reserved for institutions that maintain policies which “clearly and substantially” restrict student expression on campus.
“The university’s policies regulating speech are difficult to judge and criticize because they are so opaque,” said current ASSU Senator Adam Creasman, who sat on a free speech policy summit with students and administrators in June. “Few people, even among the administration, seem to fully understand the extent or scope of the University’s restrictions on speech,” he added.
In 2004, the Stanford Democrats, led by then-president Kai Stinchcombe, attempted to run a phone bank to raise support for Democratic presidential candidate John Kerry among undecided voters in swing states. The Democrats christened it the “Kerry Power Hour” and planned for it to take place in White Plaza, Stanford’s designated “free speech zone.” However, members of the Office of Student Activities, including Director Nanci Howe, banned the event from campus grounds, claiming that it too closely affiliated the University with a single political group, therefore violating Stanford’s non-profit regulations on partisan activities. Stinchcombe challenged this and wrote in The Stanford Daily at the time that the University was illegally restricting the constitutional rights guaranteed to him by the First Amendment as well as the Leonard Law. He then threatened to sue Stanford, at which point it reversed its position. As a result, students of all political groups may now express themselves freely in White Plaza.
Attempted University crackdowns such as that mentioned above tend to spur students to further investigate Stanford’s stringent policies. The Fundamental Standard, for example, is often cited as a blatant violation of the Leonard Law. It establishes a basis for penalizing, or even expelling, students who fail to show respect for “order, morality, personal honor, and the rights of others as is demanded of good citizens.” Yet because the Standard does not specify what sorts of behavior and speech constitute that of a good citizen, it gives itself the freedom to determine objectionable conduct on a case-by-case basis.
“By making policies like the Fundamental Standard vague, the administration effectively cows students into submission with the specter of undefined punishment,” Creasman explained.
Stanford’s exploitation of its vague policies was clearly on display in 2008 and into this summer, when Michele Kerr, a graduate student at the Stanford Teacher Education Program, or STEP, was threatened with the revocation of her admission and, later, expulsion, when she posted dissenting views about the program’s progressive philosophy on her private blog. The University proceeded to demand the password for the blog, which was not publicly viewable, and even went so far as to notify the principal of the school at which she was student teaching of her rogue blogging. Kerr sought help from FIRE, who wrote two letters to President Hennessy. The senior university counsel, among other senior administrators. replied by promising that Kerr would be allowed to continue in the program and guaranteed her fair treatment, revoking all threats and grievances the University had earlier expressed.
Online arenas aside, Stanford emphasizes that speech is most protected within the borders of White Plaza, though the 2004 Kerry Power Hour showed that even this area is not sacrosanct. As an additional restriction, the zone must be reserved two weeks in advance, following OSA approval of the scheduled event.
In an article criticizing Stanford’s speech policies, Samantha Harris, Director of Speech Code Research at FIRE, writes that this designated “free speech zone” is problematic for two reasons: “First, it appears to quarantine expressive activity to just one area of Stanford’s campus; second, even within that one area, it establishes an onerous preregistration requirement that prevents students from engaging in spontaneous expressive activity in response to unfolding events.”
What Harris seems to be unaware of is that “spontaneous expressive activity” does indeed occur at Stanford—just not always at White Plaza.
When former Secretary of State Condoleezza Rice returned to campus earlier this year, many students were far from welcoming. In April, Rice was scheduled to meet and speak with students at Roble. During her visit, students hostile to Rice and her policies protested outside the building, waving around masks they had made of the former secretary. Although the protestors were not allowed inside the dorm, they were neither forced to leave nor asked to end their display, despite the fact that their spontaneous event was in clear violation of the University’s speech policies.
Stanford again ignored its own policies in May 2009, when students led a march down Palm Drive loudly voicing their disapproval of California Proposition 8, blocking traffic in the process. Although the march was peaceful, it was still outside the “free speech zone” and was only allowed to continue at the discretion of the administration. This has prompted some to wonder if the University is biased in choosing what sorts of free expression it allows. “Would the university have barred a march in support of Prop 8?” asked Creasman. “Even as someone who supports gay marriage, I would hope that my political opponents have the same constitutionally protected ability to express their outrage that I do.”
Stanford’s speech policies are largely well-intentioned, attempting as they do to foster an attitude of tolerance among its diverse group of students. The Acts of Intolerance Protocol, for example, insists that no one may target an individual or group on the basis of gender or gender identity, race or ethnicity, disability, religion, sexual orientation, nationality, or age. Students who violate the Protocol must undergo sensitivity training or other “education.” However, some consider these types of policies to be misguided, even setting aside their questionable legality. “I would like to think that my fellow students respect each other and conduct themselves with honor because of the strength of their integrity and the closeness of our community, and not out of a pseudo-legal obligation,” said Creasman.
Though Stanford has made known that it has no intention of restricting students’ free speech, its policies inarguably do exactly that, and its actions seem to tolerate only the expression of ideals the University supports.
“There does not need to be any tradeoff between free speech and the values that the university deems either virtuous or objectionable,” says Adam Kissel, Director of the Individual Rights Program at FIRE. “As a private university, Stanford has the prerogative to declare official institutional views that are highly politicized. Whether this is a good thing for academic freedom and the free marketplace of ideas is a different question.”