Last Spring we brought you the “Sweet Sixteen of Liberty” – a breakdown of the NCAA tournament’s Sweet Sixteen based on Universities’ respect for students’ First Amendment rights. The Final Four was Tennessee, Xavier, Kentucky and Baylor. Yeah, that didn’t happen. But 6-seed Tennessee and 3-seed Baylor made the Elite 8 and 6-seed Xavier did make the Sweet 16 – all outperforming their seeds.
As I explained then, this inability to think about colleges without also thinking about the myriad ways in which they violate students’ rights is a byproduct of the work we do. So rather than fight it, I’ll bring you my picks for all 35 bowl games based on the universities’ respect for the First Amendment. The first installment today is for those games played through December 27. Later posts will cover the remaining games – including the BCS National Championship. But I’m still persuadable. If you know of First Amendment problems on a bowl team’s campus that you think should factor into my analysis please let me know. And if you’re a student at one of the universities below and would like to work to eliminate unconstitutional policies on your campus, contact us.
The same rules will be applied as in my NCAA tourney post. Except of course that since this is football, there is no need for a rule requiring that I must pick against Duke.
- Prior and current First Amendment violations – many of which can be found on ADF’s Speak Up Movement Map by a school are negatives that can cause it to lose to a school that only has bad policies on paper. Practice trumps policy.
- Nevertheless, FIRE’s red/yellow/green light rating for speech policies at a school is an important factor.
- A university will not be excused for its past violations just because the policies have now been changed as a result of litigation. This is distinguished from true repentance. But that is rare in universities anyway. See e.g. the University of Wisconsin.
- Private universities get some leeway, but not a complete pass. Otherwise the exercise becomes pointless as Miami and Notre Dame battle to a scoreless tie.
- I retain the authority to apply additional criteria as I choose and to apply the above criteria in any manner I wish. One might say my discretion is unbridled.
The Picks (Dec. 18-27):
New Mexico Bowl: UTEP v. BYU – BYU is a religious private institution and thus not subject to the First Amendment, nor is BYU unclear about its religious beliefs and expectations of students. UTEP is a state (and therefore constitutionally restrained) school. And its vague speech code garners a “red light” rating from FIRE. UTEP also previously required students to get permission to speak, allowed unbridled discretion in approving requests, and limited speech to two areas on campus. UTEP’s policy change is a nice rally that might have earned it a win against a lot of schools, but BYU still wins a squeaker by default. Pick: BYU.
Humanitarian Bowl: Northern Illinois v. Fresno State – With all apologies to the sponsors, there’s nothing humane about this. Fresno State trounces Northern Illinois – and almost all due to NIU First Amendment miscues. Fresno has its issues. It has a red light speech code and an email policy that prohibits students from transmitting anything that one might deem “offensive.” But the First Amendment has had a rough few weeks at Northern Illinois. It first denied recognition to a student group because of its views and prevented them from posting flyers on campus. But while it has since backed down on this policy, NIU maintains a prohibition on funding for religious and political student groups from the student fees all students pay – an open rejection of the Supreme Court’s decisions in Rosenberger and Southworth. Pick: Fresno State.
New Orleans Bowl: Ohio v Troy – Both schools have problematic speech codes. Ohio, for example, includes “any act [including a single spoken comment] which demeans, degrades or disgraces any person” in its definition of the expulsion offense of causing “mental or bodily harm” – even if the comments are constitutionally protected. But Troy’s speech codes are even worse. Troy deems it “harassment” for any individual student to make any “unwelcome” comment. It also defines harassment to include “shun[ning]” or “exclud[ing]” another student on any prohibited ground, including religion, sex, and sexual orientation. Hence, a Troy student could be guilty of “harassment” if he refuses to date a person on one of these bases. Dwell on that for a moment. Pick: Ohio.
St. Petersburg Bowl: Louisville v Southern Miss – Yet another matchup of schools with red lights from FIRE (are you sensing a pattern?). And Louisville has previously been FIRE’s “Speech Code of the Month” (not a good thing). But Louisville has since taken some steps to remedy its unconstitutionalpolicies which, although not perfect, demonstrates a degree of willingness to rectify its problems. Compare with Southern Miss’s policy that, almost comically, states that “statements of intolerance … will not be supported and will be subject to disciplinary action.” In other words, statements of intolerance will not be tolerated. Pick: Louisville.
Las Vegas Bowl: Utah v Boise State – At last, we have a team deserving of a win. FIRE rates 14 schools in the country as “green light” schools – where the school’s policies are drafted in a manner that respects First Amendment protected expression. Utah is one of those schools. Two years ago, Utah revamped its red light policies and earned its green light (not even in response to litigation!). Boise State has no FIRE rating, but until recently it prohibited religious student groups from receiving student activity funding on the same basis as other student groups. Even though this policy was in direct violation of the Supreme Court’s decision in Rosenberger, Boise State claimed that while the First Amendment may require it to treat religious student groups the same, the Idaho constitution required it to exclude them. That’s right. Boise State argued that its state constitution nullified the federal constitution. John C. Calhoun would have been proud. But as it was correcting this problem in response to the lawsuit, Boise State then moved to derecognize many of the same Christian student groups using its nondiscrimination policy. CLS and ADF eventually achieved a favorable settlement, but compared to Utah’s lilly green rating, Boise State faces an uphill climb. On the bright side, at least it shouldn’t come down to a field goal. Pick: Utah in a rout.
Poinsettia Bowl: San Diego State v. Navy – On one hand you have the Naval Academy. On the other hand you have San Diego State, a University that threatened to punish a student for “abusive behavior” because he challenged – in Arabic – other Arabic speaking students who were expressing pleasure at the 9/11 terror attacks just days afterward. And San Diego State is now punishing Christian student groups because they desire to ensure that they are led by Christian students – even as it permits some other religious and other groups to limit their leadership to those who share the groups’ views. The Naval Academy torpedoes San Diego State. Pick: Naval Academy.
Hawaii Bowl: Tulsa v Hawaii – Tulsa is private but it promises that its students “have the rights and privileges granted to all citizens in the Bill of Rights—specifically freedom of speech, freedom of assembly, and freedom of dissent.” Nevertheless, its speech codes earn it a red light rating from FIRE. But the University of Hawaii, a public university actually bound by the First Amendment prohibits any student from engaging in any “Discrimination of any person based on the UH protected classes.” Hence, like Troy, any individual student’s refusal to date an individual because of gender, sexual orientation, religion, etc. would violate school policy. And until Rosenberger made clear that it could not exclude religious student groups from student fee funding, U Hawaii had bowed to ACLU pressure and discriminated against religious student organizations. Pick: Tulsa in a squeaker.
Little Caesars Bowl: Florida International v Toledo – The University of Toledo denied recognition to a CLS chapter because the group had the temerity to actually include religious language in its own chapter constitution and because it actually included the exemption for religious student groups from the school’s religion nondiscrimination policy in its constitution. It took a federal lawsuit to persuade Toledo to apply its own exemption to CLS and to get permission for CLS to reference its religious beliefs in its own governing document. FIU has some red light speech codes, including one prohibiting the posting of any literature that “can be considered offensive”. But that pales in comparison to Toledo’s intransigence. Pick: FIU.
Independence Bowl: Air Force v. Georgia Tech – In one corner is the Air Force Academy. As with any service academy you realize going in that you set aside from privacy, speech and other rights as you train and move toward a career defending everyone else’s freedoms. So it’s hard to assess the Air Force’s policies anyway. But Georgia Tech makes it easy. Georgia Tech derecognized Rejoyce in Jesus because it limited its leadership to those who … rejoyce in Jesus. The Attorney General of Georgia intervened to protect the group’s rights of speech and expression. Then Georgia Tech applied unconstitutional speech codes to student speech it viewed as “intolerant,” limited speech to tiny zones, denied funds for groups that engaged in “religious activities,” and operated a “Safe Space” program that purported to instruct students on the “correct” interpretation of the Bible concerning homosexuality. This policy resulted in a federal court decision holding that Georgia Tech violated the Establishment Clause. Pick: Air Force.
Check back for the remaining games in later posts…
This post originally appeared here.