UCD under FIRE

The Foundation for Individual Rights in Education Report on University College Dublin

Encroachments upon students’ rights to free speech in the USA and the UK have led to governments in both countries taking measures to ensure its protection. The comparative lack of controversy at Irish universities over students’ free speech might engender complacency about the issue. But how do attitudes towards freedom of expression on Irish campuses actually compare, say, to a US university? I contacted FIRE, the Foundation for Individual Rights in Education, for assistance in checking the pulse of free speech at Ireland’s largest university, University College Dublin. The results were damning.

FIRE is a non-profit, non-partisan civil liberties organisation founded over twenty years ago to protect students’ free speech rights on US college campuses. It maintains a Speech Code Ratings database, updated annually, for almost 500 US colleges and universities based on analysis of all publicly accessible policy documents that are concerned with regulating student conduct and expression on campus. The result of the analysis is then depicted using coloured ‘traffic lights’—Green, Yellow or Red, depending on the limitations placed on free speech at that institution. A ‘Green Light’ rating indicates that the institution does not maintain policies that threaten students’ free expression. A ‘Red Light’ is given to those universities that have at least one policy provision that clearly and substantially restricts freedom of speech. Unclear or vaguely written policies that may be interpreted to restrict expression receive ‘Yellow Lights’.

My request to FIRE was simple: would it be willing to assess the policies at UCD that regulate the expressive rights of students, in order thereby to offer a Speech Code rating for the university? FIRE had never before applied its rating system to a non-US university, but it agreed to do so in this case. The result: UCD, if assessed by the standards FIRE applies to US universities, would receive a ‘Red Light’, FIRE’s worst rating. Of the 481 universities assessed for its 2022 ‘Spotlight on Speech Codes’ report, just under one fifth earned a red light. In other words, UCD would be in the bottom 20%, or what FIRE calls ‘the naughty list’.

It gets worse. For an institutional Red Light rating, just one policy that contains explicit restrictions on students’ free speech is necessary. FIRE’s report found that UCD incurred no less than three reds, and six yellows, across five policy documents. In FIRE’s ‘naughty list’, eight universities received the same number of ‘Red’ lights as UCD, and only two earned more. What this means is that UCD would place among the ten worst universities in America for free speech.

Now one might be moved to dismiss this as a mere hypothetical exercise. FIRE, after all, is judging UCD as if it were a public US university, and as such subject to US constitutional law, in particular the First Amendment. But UCD is not subject to the First Amendment; in fact, the ‘Red Light’ provisions in UCD’s policy documents may be said to reflect Irish and EU Law.

But if one responds in this way to the FIRE rating, by pointing out that we are not bound to the First Amendment in Ireland, or Europe, is that the end of the argument, or merely the beginning? After all, what this exercise clearly shows is that the vast majority of US students face far fewer speech restrictions than their Irish counterparts, both inside and outside their higher education institutes. Besides, UCD’s six ‘Yellow Lights’, for policies that include vague and ambiguous prohibitions, are perhaps more destructive to a culture of free speech than an explicit speech restriction that is in line with the law; for the former encourage self-censorship, and thus create an atmosphere that chills the possibility of free and open inquiry.

Below is the Complete Report on UCD (written by Laura Beltz, Director of Policy Reform at FIRE), followed by extended responses from my interview with Joe Humphreys of the Irish Times, in which the FIRE report is discussed (published Thursday 7th July 2022).

Note: On June 6th 2022 FIRE announced a major extension of its mission to protect free speech beyond higher education, and, to reflect this, duly changed its name to the Foundation for Individual Rights and Expression.

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The FIRE report on University College Dublin

First, the UCD Student Code of Conduct has been excerpted below: 

The University promotes a culture which protects the dignity and respect of everyone and which supports your right to study in an environment which is free from discrimination, bullying, harassment and sexual harassment. All members of the University community are expected to respect each other and to contribute to the creation of a positive environment. 

… 

 Under this code you are expected to: …

• Communicate with your fellow students and staff members in a respectful and courteous manner. This includes formal communications with the University such as feedback mechanisms and surveys.

… 

You are expected to:

• Take responsibility for your behaviour on and off campus, and ensure that your actions don’t have a negative impact on yourself, others or the University. 

This provision would earn a “yellow light” rating from FIRE. While the university may certainly commit itself to promoting a culture that protects the dignity and respect of everyone, stating that all members of the community must communicate “in a respectful and courteous manner” is a vague standard that could be applied to punish speech that is protected under First Amendment legal standards, but that is subjectively disrespectful or discourteous. 

Further, the catchall provision requiring all members of the community to ensure their actions don’t have a “negative impact” on the university could similarly be used to punish protected speech, such as a tweet that criticizes the administration. 

Next, the “General Misconduct” section of the Student Code of Conduct provides the following general provision: 

This section provides a broad, but not exhaustive, list of example breaches that the University considers to be ‘general misconduct’ … 

Violent, abusive, threatening, offensive or unacceptable behaviour, including bullying, harassment sexual misconduct and sexual harassment. Any form of violent (including assault), indecent, abusive, threatening or offensive behaviour is not acceptable. This includes behaviour and actions that take place face-to-face, online or through messaging platforms. 

This policy would earn a yellow light rating from FIRE. The policy bans all “abusive,” “offensive,” and “unacceptable behaviour” — broad and vague terms that could too easily be applied to restrict free speech. The policy doesn’t specify whether a single act of expression that is deemed abusive, offensive, or unacceptable is necessarily subject to punishment, but given the way it notes that behavior taking place face-to-face, online, or through messaging platforms could all qualify, it is possible that the policy could be applied to restrict something like a single subjectively offensive joke. 

Under First Amendment legal standards, speech may not be limited on the sole basis it has been subjectively deemed offensive. Indeed, the Supreme Court has made clear in rulings spanning decades that speech may not be restricted simply because it offends viewers or listeners. See, e.g., Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (noting that free speech “may indeed best serve its high purpose when it induces a condition of unrest … or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea.”). See also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”).

The “General Misconduct” section defines bullying and cyberbullying using the following language, taken from the university’s “Bullying & Harassment Policy”: 

3.3.1 Bullying 

In accordance with the Code of Practice on Bullying 2021 bullying is repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work/study and/or in the course of employment/study which could reasonably be regarded as undermining the individual’s right to dignity at the place of work/study. An isolated incident of the behaviour described in this definition may be an affront to dignity at work or study but, as a once off incident, is not considered to be bullying. 

The University will apply the following criteria set out by the Code of Practice on Bullying 2021: 

• an ongoing series of accumulation of seriously negative targeted behaviours against a person or persons to undermine their esteem and standing in a harmful, sustained way. 

• behaviour is offensive, on-going, targeted and outside the reasonable “norm.” 

• a pattern and trend are involved so that a reasonable person would regard such behaviour as clearly wrong, undermining and humiliating.

• involves repeated incidents or pattern of behaviour that is usually intended to intimidate, offend, degrade or humiliate a particular person or group of people – but the intention is not important in the identification process.

Examples of bullying behaviour include but are not limited to 

• Verbal abuse /insults

• Physical abuse 

• Intrusion – pestering, spying or stalking 

• Unjustifiable exclusion e.g. withholding information, isolation or non-co-operation, non-response or repeated unavailability, exclusion from classroom and social activities. 

• Menacing behaviour 

• Offensive, intimidating, malicious or insulting behaviour, open aggression, threats, shouting. 

• Undermining behaviour 

• Controlling, coercive and threatening behaviour 

• Humiliation 

• Gossip

• Blame for things beyond the person’s control 

• Misuse of power through means intended to undermine, humiliate, denigrate or injure the recipient. 

• Bullying and Harassment on Social Media whether conducted on a personal device or University equipment.

3.3.2 Cyber Bullying 

Cyberbullying is bullying that takes place over digital devices such as phones, computers, and tablets. It can also occur through SMS, Text, and apps, or online in social media and forums. Cyberbullying includes sending, posting, or sharing (even once) an offensive or hurtful message, image or statement on a social network or another public forum where that message, image or statement can be viewed and or repeated by other people. 

This provision would earn a yellow light rating from FIRE. While bullying conduct that meets the legal standard for unlawful hostile environment harassment would be punishable under First Amendment standards, this policy’s broad examples could be applied to restrict protected expression.

Under the standard for student-on-student (or peer) harassment provided by the Supreme Court, alleged harassment must be conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). 

By requiring repeated conduct, this provision’s definition comes close to tracking the “pervasive” component from the Supreme Court’s standard, but it is unclear what would constitute the undermining of an “individual’s right to dignity” under UCD’s policy. The provision should instead ban repetitive conduct that effectively denies an individual access to institutional resources and opportunities.  

Of further concern, the provision goes on to provide a list of items like “[v]erbal abuse/insults,” “[u]ndermining behaviour,” and “[h]umiliation” as examples of “bullying behaviour.” Though these examples could certainly be a part of a pattern of conduct that rises to the level of hostile environment harassment, these examples are typically protected expression when standing alone. Students reading this policy, however, are likely to assume such conduct is prohibited across the board and self-censor accordingly.

Similarly, the “cyberbullying” provision states that cyberbullying includes sending, posting, or sharing “an offensive or hurtful message,” an exceedingly broad standard that includes a great deal of expression that is protected under First Amendment standards, such as a rude tweet about a rival sports team. 

Next, the “General Misconduct” section also reproduces the “Harassment” provision from the Bullying & Harassment Policy”: 

Harassment is any form of unwanted conduct related to any of the discriminatory grounds under the Equal Status Act which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment. Harassment can be a one-off incident. Examples of harassment include but are not limited to: verbal harassment – jokes, comments, ridicule or songs; written harassment – including text messages, social media, including group messages, emails, physical harassment – jostling, shoving or any form of assault, intimidatory harassment – gestures, posturing or threatening poses. 

This provision would earn a “red light” rating from FIRE. This provision does not sufficiently track the “severe, pervasive, and objectively offensive” components of the Supreme Court’s peer harassment standard discussed above, and would allow punishment for any verbal conduct that has the mere purpose of “violating a person’s dignity” (however that is defined) and that has subjectively created an offensive environment. Further, the policy lists as examples of harassment things like “jokes, comments, ridicule or songs.” This broad list includes expression that is protected under First Amendment standards. 

Next, the “General Misconduct” section provides the following definition for “Sexual Harassment”:

Sexual Harassment is defined under the Employment Equality Acts 1998 – 2015. It includes any act of physical intimacy, request for sexual favours, other act or conduct including spoken words, gestures or the production, display or circulation of written words, picture or other material that is unwelcome and could reasonably be regarded as sexually offensive, humiliating or intimidating. 

This provision would earn a red light rating from FIRE. It makes punishable any unwelcome speech that “could reasonably be regarded” as “sexually offensive, humiliating or intimidating,” whether or not it interferes with an individual’s access to educational resources and opportunities. Plenty of speech that could reasonably be regarded as sexually offensive, humiliating, or intimidating would be protected under First Amendment standards, such as a single, off-color joke. 

Next, the “Other Misconduct” provision from the Student Code of Conduct is provided below: 

Other behaviour deemed unacceptable including a single incident of misconduct may be reported and addressed under the Student Discipline Procedure.

This policy would earn a yellow light rating from FIRE. This catchall provision allows the administration to punish students over single instances of conduct that does not fall under these definitions but is nevertheless deemed “unacceptable,” a vague standard that could be applied to restrict protected speech. This is all the more concerning, given the way the university’s reporting page now solicits anonymous reports about conduct that may violate these policies.

Moving on, the “UCD Information Technology Services Acceptable Use Policy” is excerpted below: 

It is not acceptable to view, download, transmit or store any offensive, indecent images or material.

This policy would earn a red light rating from FIRE. The policy bans “offensive” or “indecent” images or material, which are overbroad terms that could include just about any material that is subjectively disfavored. As discussed above, under First Amendment standards, speech may not be prohibited merely because it is found to be offensive. 

Last, the the “Gender Identity & Expression Policy” is excerpted below: 

Our University does not tolerate harassment or bullying or discrimination of colleagues, students or any member of our University community on the basis of gender identity and expression. 

This policy would earn a yellow light rating from FIRE. Here, “bullying” on the basis of gender identity and expression is not defined, leaving open the possibility that students may be punished for expression that is protected but that is subjectively deemed bullying behavior.

Finally, UCD’s “Dignity and Respect Policy” provides the following list of “Rights and Responsibilities” for members of the university community: 

All individual members of the University Community including employees, students and others have a responsibility to:

• At all times, treat all members of the University community that they interact with dignity and respect

• Positively contribute to a culture of dignity and respect

• Engage in respectful conduct or behaviour that will not endanger their own safety, health and welfare or work or that of any other person including obligations under the Safety, Health and Welfare at Work Act, 2005

• Be aware of the effects of their own behaviour

• Challenge bullying, sexual harassment or other harassment and report any incidents witnesses

Like the expectations laid out in the Student Code of Conduct, this policy places vague expectations on members of the university community, such as the requirement to “treat all members of the University community that they interact with dignity and respect,” which could be applied to restrict their speech. Further, requiring individuals to “[c]hallenge bullying, sexual harassment or other harassment” could force them to speak out when they feel unsafe to do so (I discuss the problem with bystander liability in such cases briefly in this article). 

Laura Beltz
Director of Policy Reform

Foundation for Individual Rights in Education (FIRE)
510 Walnut Street, Suite 1250,

Philadelphia, PA 19106

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Extended Responses from the Irish Times interview.

- The codes of behaviour are similar to those that apply in a general workplace environment, or commercial body. Why should college campuses be treated differently?

The university campus is by nature very different to a general workplace environment, such as that of a commercial enterprise. They each have very different goals. The latter has certain economic outcomes as its aim. A university, on the other hand, has knowledge, its discovery and dissemination, as its aim. In a business enterprise a code of behaviour that seeks to minimise potential causes of offence and disruption among its employees, and between employees and customers, is crucial to the smooth running and success of the operation. But setting down similar measures on campus to ensure the avoidance of offence amongst students, who are neither employees nor customers, disrupts the very purpose of the university. After all, whereas a commercial enterprise is not interested in changing the rules of commerce (it may do so, but that would be incidental to its main goal—profit), a university should be precisely the place where freedom exists for the rules of life, or the customs and laws generally, to be questioned. And such exploration, such clashing of ideas, may be deemed offensive to some students. But you can’t suppress that without thereby undermining the university’s purpose.

Two classic defences of free expression on campus, both from the University of Chicago, make this point perfectly. Firstly, the 1967 Kalven report: ‘A university faithful to its mission … is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting’. This was reinforced in Chicago’s 2014 Statement on Free Expression: ‘it is not the proper role of the University to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive… the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.’ No commercial body hoping to remain in business can risk being an upsetting environment for its employees and certainly not for its customers; nor can it tolerate an employee offering up ideas thought offensive or wrongheaded by workplace colleagues. But that is the business of the university.

- What are the effects of these codes and policies in practice?

There are negative effects in the short term and in the long term. The short term effects are destructive of the university; the long term effects are destructive of democracy.  

In the short term, speech codes stifle debate and inquiry, and encourage ideological uniformity. Students will hesitate to offer their opinion, to avoid being berated by fellow students, or by their instructors, for advancing unpopular, offensive, or so-called ‘problematic’ views. Thus students will practice self-censorship, and this produces an atmosphere that chills the possibility of free and open inquiry. If, for instance, in student discussion, a point is met by ‘that’s offensive’, it immediately shuts the discussion down. Lecturers or tutors who try to keep a discussion going in such an atmosphere may in turn be putting themselves at risk of being perceived as, or accused of, acting insensitively. The codes, with their emphasis on avoiding offence, are thus a road block to thinking. And without a commitment to free and open enquiry, the university ceases to exist as a university.

In the long term, the effects on society are perhaps already evident. Transforming the university into a place where the central aim is to ensure that young adults will not be offended, a place where they will not be exposed to dissenting voices, produces graduates who have not learned to talk to or live with those who hold other views, resorting instead to tribalism, demonisation of others and even violence. Indeed studies show that people with the highest level of education tend to have the lowest levels of exposure to opposing viewpoints. And this has awful consequences for democracy. Differing political views are not accepted as part of the life of a democracy; they are shouted down, cancelled, slurred and slandered. In other words, the effect is continued and increased polarisation. It is ironic indeed that policies stemming from the desire for inculcating civility and respect produce the opposite—incivility, outrage, and lack of respect.

A university fulfilling its mission should provide challenges to its students; and thus should inspire change and growth, which can certainly be painful. It’s not that students’ views should be changed by university education; they may leave with essentially the same views with which they entered. But they will have learned more about their own views, how to defend their own views, where their own views are weak and where strong; and, hopefully, they will have learned about opposing views, and the reasons, the reasonable reasons, why other people hold such views. And such an education will breed tolerance and civility quicker than policies that discourage opponents from speaking freely to each other for fear of offence. As Shaftesbury put it, ‘All politeness is owing to liberty. We polish one another and rub off our corners and rough sides by a sort of amicable collision. To restrain this is inevitably to bring a rust upon men’s understandings. It is a destroying of civility… under pretence of maintaining it.’

It is also worth pointing out the effects on the students themselves, in particular, on their mental health. Words and ideas may indeed produce discomfort, even distress. And in the face of rising cases of mental health and anxiety on campus, University Administrators and, frequently, the faculty, have come to think their role is to ensure the avoidance of distress in students. But this may well be exacerbating the mental health problem. As Jonathan Haidt and President of FIRE Greg Lukianoff point out, ‘some well-intentioned protections [against free speech] may backfire and make things worse in the long run for the very students we are trying to help’.

Now perhaps it is important to add that not all students will feel stifled by free speech restrictions. And many, perhaps most, of the faculty will be dismissive of any such concerns, and fail to recognise the picture sketched above. But, as Eric Heinze noted recently, ‘a lot of academics don’t actually rate free speech as highly as you’d think’, explaining that this is because they don’t really have to fight for it. I would add to that that if your own opinions are mirrored in the speech codes, then the feeling of being restricted by such codes won’t ever occur to you. We must remember that Western universities tend to be overwhelmingly ideologically biased towards one side of the political spectrum. And a recent study indicates that doctoral students, who will be the next generation of academics, are ideologically similar, but more intolerant and more sceptical of free expression, than today’s academics.

So would UCD students say they are affected by free speech issues on a daily basis? That they feel stifled by the restrictions? That they are even aware of restrictions? I imagine most would not say so, not at all. After all, the point of these restrictions is that they are left comfortable and safe from challenging ideas. Who would complain about that? Any complaint would be about being forced to think, about having their views challenged. Indeed, many students welcome speech codes.

The issue, then, is not about taking up arms on the side of the students who are demanding free speech; it is, rather, to show to students the value of free speech. This won’t be easy; thinking, real thinking, is hard. So no, students in general probably won’t be feeling oppressed or restricted on campus, given that the  university sets itself up to serve them, to see them as customers who must be kept happy. And with such a set up, we do them a great disservice.

- Do we need something like Fire in Ireland – some kind of concerted movement to more robustly defend free speech?

I think we urgently need something like FIRE in Ireland, that is, an advocacy group, independent from the universities and from government, that keeps an eye on the policies in place at our universities and other institutes of higher education, and puts pressure on them to ensure that free speech is being respected and promoted. And, when necessary, it would have the resources to initiate legal action where free speech is being supressed on our campuses.

And while free speech and academic freedom are not the same things, the remit of such an entity might be plausibly extended to cover breaches of academic freedom too. In the Universities Act, Ireland has one of the strongest de jure or legal supports for academic freedom in Europe; but as recent events have shown, this is not always recognised and adhered to de facto. The March 2020 Working Group attack on UCD’s Statement on Academic Freedom is a good example. That was retracted, of course; but what if it wasn’t? What if there wasn’t an immediate and strong outcry from faculty against it? What recourse would a minority of concerned academics have to fight it, even when it was so clearly in breach of the Universities Act?

What if, for instance, a new policy were proposed, that consisted of a similar dereliction of the duties and responsibilities of the university as set down by law, but which was aimed at furthering a social or political end with which most of the faculty were in ideological agreement?  New policies, particularly those coming under the EDI banner, far from meeting the responsibility of the university, under the Universities Act, namely, to preserve and promote academic freedom, often appear to be totally ignorant of the protections of academic freedom.

So yes, we need something like FIRE in Ireland. In the meantime, I would suggest two things. Firstly, I would encourage academics who share concerns about free expression and academic freedom to join the Heterodox Academy, a US based nonpartisan collaborative of over 5,000 academics and students who are committed to promoting open inquiry, viewpoint diversity, and constructive disagreement on campus. I have been a member since 2019, but there are only two others in UCD, just one in TCD, and in the whole island of Ireland less than 15 members altogether. And secondly, I would urge academics to put pressure on their schools, their colleges, and their universities to adopt the ‘Chicago Statement’, the Report on Freedom of Expression produced by the University of Chicago in 2014, and which has since been adopted or endorsed by over 80 institutions in the US (as well as by FIRE). We do have a Statement on Academic Freedom at UCD, and it is a robust document; but adopting the Chicago Statement alongside this would send a strong message that the institution values free expression for all its members.

  - Are other colleges in Ireland very different to UCD in terms of their approach to free speech? Take Trinity College’ Freedom of Expression statement:

‘The College promotes an environment of freedom of expression and intellectual enquiry and is committed to ensuring it is exercised in such a way as shall not interfere with the rights of others, or breach national legislation.’

https://www.tcd.ie/about/policies/ethics-policy.php#freedomofexpression

I don’t think UCD is an outlier in getting such a damning report from FIRE. It has hit the headlines more often than other Irish universities for free speech/academic freedom issues; but then it is the biggest university in the country. The report from FIRE should not make other Irish university administrators complacent; it should make them nervous.

Regarding the part of the Trinity Statement quoted above, I do think it is vague. It should state clearly what rights trump the right to free expression; and it could be mindful that the right to freedom of speech is the most important of all —for without it, we cannot even begin to subject all other rights to scrutiny. And as for ‘breach national legislation’, that too is vague. Perhaps it just means ‘within the law’, which appears in the UCD Statement too. But what about speech that is expressly intended to criticise, undermine, and ultimately overturn national legislation, and which indeed explicitly calls not just for interference with, but for the abrogation of the legally recognised rights of others? One could consider the pro-information campaign of Irish Students’ Unions regarding abortion in the late 80s and 90s in that way. In fact it was considered that way at the time, and TCD SU reps were brought to court by SPUC, and lost their case both in the European Court and in the High Court, on a charge of ‘breaching the constitutional rights of the unborn by giving information to pregnant women in any form which might lead them to terminate the pregnancy’. Imagine the X case and the 36th amendment had never happened, and TCD SU were still involved in a pro-info campaign. Wouldn’t TCD’s couched commitment to free speech appear to curb such exercise of free speech? Would TCD academics and administrators tolerate that?

Massive changes in society have been possible only through free speech. How do measures that get to be voted upon gain the popular support to initiate change? Free speech. But there is often a perception that once such changes have occurred, free speech about such issues must be from then on curbed. That is anti-democratic and illiberal.