FIRE takes aim at Rice free speech, judicial policies

By Rachel Carlton     1/14/20 11:44pm

The Foundation for Individual Rights in Education rated Rice as a “yellow light” school with respect to its free speech policies for the second year in a row, according to FIRE’s “Spotlight on Speech Codes 2020”, released on Dec. 4.

Apart from 2019 and 2020, Rice had received a “red light” rating from FIRE each year since the organization began publishing their annual Speech Code Reports in 2006.

FIRE brands itself as a non-partisan legal non-profit dedicated to “defend[ing] and sustain[ing] the individual rights of students and faculty members at America’s colleges and universities,” according to its mission statement. FIRE also receives significant funding from conservative groups like the Lynde and Harry Bradley Foundation, the Sarah Scaife Foundation and the Charles Koch Institute, according to the New York Times. 

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Of the 471 universities surveyed by FIRE, 63.9 percent earned an overall yellow light rating on their “traffic light” scale. Rice was one of 49 private schools to receive this rating out of the 105 surveyed; the majority of the schools surveyed were public. 

Five of Rice’s policies were given a yellow-light speech code rating, including policies from the Code of Student Conduct, two general Rice policies, and a policy on student responsibility from the General Announcements. 

According to  Laura Beltz, the senior program officer for policy reform at FIRE, some of Rice’s policies include language that doesn’t track with the Supreme Court’s legal standards. 

“There are a couple of policies that ban verbal abuse,” Beltz said. “That’s a prime example of a yellow light policy because verbal abuse could just be something that was said with a rude tone that would be constitutionally protected. When you have a ban on verbal abuse, it means that an administrator could hear that subjectively rude speech and apply that policy to censor the speech.”

Emily Garza, director of Student Judicial Programs, said that she is confident that Rice crafted its policies to be legally compliant while also prioritizing the safety of students and the Rice community.

“Rice drafts policies related to expectations of students with input from various professionals, including those that have experience and legal expertise in the nuanced areas of freedom of speech and expression, sexual misconduct and harassment, and general issues related to student behavior,” Garza said. “I will also say that no one from FIRE has contacted our office to discuss the nuances of how our policies are implemented.”

Last semester, the Rice University Federalist Society hosted FIRE’s vice president for procedural advocacy, Samantha Harris, according to Sage Simmons, the society’s president. The Federalist Society aims “to provide a forum for legal and policy experts of opposing views to interact with members of the Rice community,” according to the chapter’s constitution.

Simmons, a Martel College senior, said Harris came to campus for a conversation with Rice students and Cathryn Councill from the SAFE Office: Interpersonal Misconduct Prevention and Support about sexual assault and campus due process under Title IX. 

FIRE gives the yellow-light rating to schools with “at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application”. 

Beltz, a University of Pennsylvania Law School graduate, said vague and confusing policies may encourage students to self-censor in order to avoid punishment from their universities.

Beltz said that she believes universities sometimes intentionally use more vague language to allow for greater discretion to censor speech. 

“But sometimes I think it was just an error in drafting,” Beltz said. “Perhaps they were intending to ban harassment and stuff like that that isn’t constitutionally protected, and they wrote verbal abuse and didn’t think about how that could be including protected speech.”

As a private university, Rice is not legally bound to protect free speech in the same way that a public university is, according to Beltz.

“Rice University does promise their students free speech,” Beltz said. “That means that they should be living up to their promises in the rest of their policies.” 

Rice received a red light rating every year since FIRE began conducting surveys in 2006, apart from 2019 and 2020.

Beltz said the policy that previously earned Rice a red light rating was an “Appropriate Use of Computer Resources” policy.

“[The policy] banned ‘profane language’ and material that ‘panders to bigotry, sexism, or other forms of prohibited discrimination,’” Beltz said. “The Supreme Court has explicitly held that speech may not be banned simply because it is subjectively profane or offensive to others, so this policy clearly restricted a broad range of speech that is protected under First Amendment standards.”

In 2009, FIRE featured Rice as part of a series on the state of free speech at the top 25 universities in the United States. Rice’s red-light rating that year prompted a Thresher staff editorial in defense of the university.

FIRE, for their part, responded with an article stressing that Rice had policies that were “facially unconstitutional,’’ regardless of whether students felt their right to free speech was protected by the administration. 

Rice has since revised the policy, instead banning communications that are “defamatory, harassing or that interfere with others’ use of resources or that disclose protected or sensitive personal data,” according to Beltz. She said that this change led to the upgrade in Rice’s rating from red to yellow.

FIRE also gives schools due process ratings based on their inclusion or exclusion of 10 due process safeguards. This year, Rice received an “F” for its non-sexual misconduct policies and a “D” for its sexual misconduct policies.

“The procedural safeguards that Rice does have are pretty much among the more common ones that schools are more likely to have,” Susan Kruth, the senior program manager for legal and public advocacy at FIRE, said. “They guarantee a way to challenge [fact finders] and a right to appeal, but other than that they’re missing everything that we’re looking for.”

The Federalist Society invited FIRE to campus because they were concerned about the inadequacies of Rice’s due process protections, according to Simmons.

“At Rice, the Honor Code is a huge part of our culture; however, I think most students would agree that the probably impossible goal of preventing every single instance of cheating shouldn’t mean an accused student is presumed guilty or denied the active counsel of an experienced adult,” Simmons said. “Replace ‘cheating’ with ‘sexual violence’ and ‘Honor Code’ with ‘Culture of Care’, and the conclusion should be the same.”

Simmons said this was especially important in situations where a Rice student faces the life-altering consequence of expulsion from school.

Kruth said the most essential problem with Rice’s policies is the type of hearing that students accused of either non-sexual or sexual misconduct are provided. 

“It looks like at Rice that the accused student is actually excused from the so-called hearing before the witnesses or the evidence is really presented, and that’s not really a hearing,” said Kruth. “That also means that the student is not directly presenting their own evidence. A student or his or her advisor is going to be [the student’s] best advocate, and they should be able to present that evidence.”

Garza said that Kruth’s statement is a mischaracterization of Rice’s disciplinary process. 

“It appears that whomever made that statement has a fundamental misunderstanding of the way that Rice handles disciplinary matters,” Garza said.

FIRE supports many parts of the Title IX regulations recently proposed by the Department of Education, such as the live hearing model in cases of sexual misconduct. Following the announcement of the proposed changes, the Student Association issued a resolution protesting the changes. 

According to Garza, Rice has designed the disciplinary process for sexual misconduct to prioritize the safety of both the responding student and the reporting student.

“Rice’s process as it currently is implemented does not require the reporting student and the responding student to meet face-to-face or be in the same room, and it does not require that the students communicate with each other directly,” Garza said. “There are further examples of how Rice prioritizes both the rights and protections of the reporting and responding students in the Sexual Misconduct Policy, such as the availability of Resource Navigators through the SAFE Office that are provided to each student.”

Kruth said she thinks it is important that students feel safe to report and that their school will take their complaints seriously.

At the same time, Kruth said that the considerations of the complainant can’t supersede the goal of helping the fact finders appropriately adjudicate a case. 

“I think it is very unfortunate that people have to be uncomfortable in these situations,” Kruth said. “But without [proper investigations] we would just be punishing people based on this idea that if someone is accused then they must be guilty, and we can’t start doing that.” 

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