No Reasonable Expectation of Free Speech Rights: FIRE gives Cedarville “WARNING” Rating

This past spring, we reached out to the Foundation for Individual Rights in Education (FIRE) in order to request an evaluation of Cedarville University’s free speech policies and procedures. We did this in order to supplement our article on free speech and provide a more quantitative evaluation from an unbiased third party. Unfortunately, FIRE was bogged down by a plethora of requests and we did not receive their rating until a few days ago. Their review of Cedarville’s policies are scathing to say the least.

The Background

(To read the review, skip to “The Review” below) In their own words, “The Foundation for Individual Rights in Education’s mission is to defend and sustain the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience—the essential qualities of liberty. FIRE educates students, faculty, alumni, trustees, and the public about the threats to these rights on our campuses, and provides the means to preserve them. FIRE was founded in 1999 by University of Pennsylvania professor Alan Charles Kors and Boston civil liberties attorney Harvey Silverglate after the overwhelming response to their 1998 book The Shadow University: The Betrayal Of Liberty On America’s Campuses.”

FIRE has a long history of defending the free speech rights of students at numerous public colleges and Universities. In 2015, the advocacy organization helped students win a lawsuit against Ohio University, forcing the University to revise its free speech policies. FIRE President Greg Lukianoff responded, “For too long, universities have engaged in censorship with little or no fear of repercussions. FIRE is bringing that era to an end.”

This organization had won 51 cases against public colleges and universities in 2021 as of June. We mention the fact that these are public colleges and universities because FIRE is concerned with constitutional violations, and only public institutions funded by the federal government are bound to constitutional requirements for freedom of speech. Private institutions are allowed to prioritize other values over freedom of speech. However, as many of us learned from our parents, just because you can doesn’t mean you should. With that said, below is FIRE’s review of Cedarville University’s free speech, performed by Ryan Ansloan, a Program Officer of Policy Reform at FIRE.

The Review

As a private university, Cedarville is not bound by the First Amendment to the Constitution. Further, provisions in the university’s student handbook—known as The Cedarville Experience—make clear that the university places other values above free expression.

Consequently, it does not seem that a student at Cedarville would have a reasonable expectation that her First Amendment rights are protected. When a private institution clearly and consistently identifies a certain set of values that it holds above free speech, FIRE awards the school a “warning” rating based on these statements (examples of warning schools in our database include Brigham Young University and Pepperdine University). I will provide a few emblematic (though by no means exhaustive) examples below.

In The Cedarville Experience’s “Public Demonstrations, Solicitations, and Distributions” section, the university notes the following:

Cedarville University will permit only those demonstrations, solicitations, or distributions that, in the judgment of the University administration, are orderly and peaceful. Demonstrations will be restricted to members of the University community. In addition, the University will restrict demonstrations, solicitations, or distributions to those that support views that are consistent with Scripture and with the mission of Cedarville University. Demonstrations, solicitations, or distributions that, in the opinion of the University, involve advocacy of unscriptural positions, are disorderly, or that interrupt or disrupt the primary teaching, research, service, ministry, and/or administrative functions of the University, or any other activity or proceeding on campus that is generally accepted as a legitimate University function, are prohibited. Students wishing to organize a demonstration, make solicitations, or distribute materials must secure permission in advance from Student Life Programs.

This policy clearly demonstrates that Cedarville does not intend to protect the free expression of its students. While the government may—consistent with the First Amendment—enact reasonable “time, place, and manner” restrictions on demonstrations to prevent disruption, it may not bar those who disagree with it from speaking outright.

The idea that the government may not silence its dissenters is a bedrock principle of freedom of speech. In a case called West Virginia State Board of Education v. Barnette (1943), the Supreme Court famously wrote: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

In prohibiting all public demonstrations that disagree with the university’s interpretation of the Bible, Cedarville’s policy offends basic First Amendment principles. This policy would not be constitutional at a public university.

The Cedarville Experience also contains more pointed prohibitions on speech. In its “Commitment to Purity” section, the handbook prohibits “public advocacy for the position that sex outside of a biblically defined marriage is morally acceptable” and states that “[s]tudents are prohibited from posting or sharing sexually provocative material.”

Both of these restrictions undoubtedly place the value of sexual purity above the value of free expression. As discussed above, the government infringes upon an individual’s First Amendment rights when it attempts to prohibit her from expressing an opinion—even when the government disagrees with that opinion. A public university could not ban students from expressing more sex-positive viewpoints.

Further, public universities may not outright ban or punish “indecent” expression. This principle derives from the Supreme Court case of Papish v. Board of Curators of the University of Missouri (1973), in which the Court wrote that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”

Cedarville’s policy extends even further than the policy ruled unconstitutional in Papish, as it threatens to punish students for their off-campus expression as well. Cedarville’s blanket ban on “sharing sexually provocative material” would, therefore, be unconstitutional at a public college.

The Cedarville Experience contains many more provisions that would be unconstitutional were it a public institution—the “Position on Sign Gifts and Speaking in Tongues,” “Respect for Others,” “Alcohol and Illegal and Harmful Substances,” and “Dance” sections of the handbook, for instance, all curtail students’ free speech rights. With this in mind, it seems unlikely that Cedarville students have any reasonable expectation of free speech rights while attending the university.

[In response to a follow-up email:] I think it is very fair to say that if Cedarville were a public institution and was rated in our Spotlight database, they would receive an overall Red Light rating for maintaining several policies that clearly and substantially restrict freedom of speech. Because Cedarville is a private institution, it is able to prioritize other values above freedom of speech. But if these policies were in place at a public institution, they would be unconstitutional and earn red light ratings.

The Analysis

FIRE’s review really speaks for itself. Of course, as a private Christian university, Cedarville has the right to prioritize certain values over free speech or free expression. However, Cedarville limits freedom expression to an extreme, including limiting student activity and speech off campus and even over breaks. Cedarville ought to ask itself: is enforcing your personal values, whether Biblical or not, on students and staff in all times at all places worth limiting student expression and inhibiting academic rigor? Are your extrabiblical doctrines really worth the control you are able to exercise over students?

To me, the clear answer is no. Excessive punishment for minor offensives detracts from the importance of larger offenses. The result of such micropunishment is students being kicked out for driving a friend to buy cigarettes but students not being kicked out for committing sexual assault. The result is students being dismissed for admitting their sexual orientation but faculty being hired with a history of sexual voyeurism (but it was only twice, so it wasn’t a big deal, right?).

The principles of our nation–which Cedarville claims to strongly support–were created in response to tyranny and supression of dissenting opinions. The kingdom of England controlled miniscule aspects of life (including religious expression) which spurred colonists to rebel and ultimately form the United States (yes, it’s more nuanced than that but that’s a very broad overview). The problem is that Cedarville is in a position with the power of a tyrant (of course, on a vastly smaller scale). Students’ only saving grace is Cedarville’s adherence to Biblical principles keeping them in line, but when this adherance becomes subjective rather than objective, students find themselves in an academic theocracy where they ought to have no expectation that their rights to free speech will be protected. Thomas Jefferson famously wrote, “When government fears the people, there is liberty. When the people fear the government, there is tyranny.” The same is true for any establishment.

An argument can be made that Cedarville should prioritize its values over free speech in certain areas. However, is it not rather dismissive of God’s sanctifying power to force students to attend chapel every day and obtain a Bible minor with every degree and then feel the need to enforce every single minor or even questionable doctrine on students at all times? I say this somewhat tongue-in-cheek, but in all saeriousness, shouldn’t the University’s policies stop at the point of creating an environment that cultivates a Biblical lifestyle rather than forcing it on students every second of every day? Frankly, Cedarville’s system eliminates free will and does not promote an authentic Biblical environment. God gave us free will precisely so that we would willingly serve him, not because we are forced or because we are robots who don’t have a choice. But at Cedarville, drink a beer and kiss those three years of straight A’s goodbye…and good luck transferring to any other university. How is this Biblical?