Using Americans With Disabilities Act to protect free speech

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Disclaimer: I am not a lawyer or a disability rights expert, and I am not offering legal advice. I’m just a psychology professor offering one possible strategy that neurominorities could use to stand up for our free speech rights at American universities.

In an earlier article for Quillette.com, I outlined how campus speech codes discriminate against people who show various forms of ‘neurodiversity’ such as Asperger’s syndrome, bipolar disorder, or ADHD. I promised a follow-up article on how neurodivergent people might be able to use the Americans with Disabilities Act (ADA) of 1990 to fight these discriminatory speech codes at U.S. universities.

If the U.S. Constitution can’t protect free speech on campus, what can?

Campus speech codes are hard to understand and hard to follow for the neurodivergent, as I argued in my previous article. In principle, this problem could be reduced by rewriting speech codes to be more concrete and detailed, with complete lists of prohibited words, forbidden ideas, banned images, and unwelcome mating tactics. The neurodivergent could simply memorize these lists and feel a little more confident that they understand what they are not allowed to say or do. But no public university would dare to print such lists of communication taboos, since the First Amendment violations would be all too conspicuous, and the lawyers from the Foundation for Individual Rights in Education (FIRE) would sue for prior restraint.

So, universities they have to keep their speech codes vague and overbroad. But then, vagueness and overbreadth are also unconstitutional. In particular, speech codes are unconstitutional if they impose a ‘chilling effect’ because they’re too imprecise about what they actually prohibit, so they force even the most reasonable people to err on the side of caution and self-censorship.

The chilling effects of unconstitutional speech codes are exacerbated by neurodiversity. For example, if a graduate student with Asperger’s knows that they can’t predict other people’s reactions to what they say, and what they say could get them in trouble with university administrators, they may become very risk-averse about how they communicate – if they communicate at all. A speech code that imposes only a mild chilling effect on the neurotypical may impose a strong chilling effect on the neurodivergent. This is a discriminatory and illegal ‘disparate impact’ against the free speech rights of neurominorities.

But the fact that speech codes are flagrantly unconstitutional has not deterred American public universities from continuing to impose them. This is because even when universities lose lawsuits over First Amendment violations, they don’t lose much beyond the settlements they secretly pay out. These almost always include non-disclosure agreements to minimize blowback from any students, faculty, alumni, or journalists who care about the Constitution. So how can neurodiversity rights protect free speech if the First Amendment can’t?

1) Most people assume that the ADA refers only to physical disabilities such as being blind or paraplegic. However, according to the ADA Amendments Act (ADAAA, 2008), the ADA covers any impairment that has affected one or more ‘major bodily functions’ including neurological and brain functions, for at least six months, and that ‘substantially limits one or more ‘major life activities’, include learning, concentrating, thinking, communicating, and/or working. Any mental disorder that interferes with ‘normal’ social interaction or communication qualifies as a disability under ADA. This would often include Asperger’s, Tourette’s, bipolar, schizophrenia, ADHD, PTSD, most personalities disorders, and many other conditions.

2) The ADA covers every neurodiversity condition even if it is in remission or interferes with ‘normal’ functioning only occasionally. Thus, if someone has bipolar disorder that’s well-managed by medication most of the time, but it flares up into a manic episode once in a while, the university may be legally obligated to make accommodations for occasional manic Facebook posts or unwelcome flirtation. As long as the condition does not prevent the person from fulfilling their basic university roles and duties, the university must make accommodations.

3) The ADA concerns the likely effect of a disability apart from any ‘mitigating measures’ taken by a person to reduce its impact. For the neurodivergent, these mitigating measures may include psychiatric medications and compensatory behavioral strategies to work around the impairment. For example, universities must consider how a student with ADHD would function without self-control aids such as Ritalin, or how a professor with Asperger’s would function without the exhausting mental tricks they’ve learned to try to increase their mind-reading and empathizing abilities. This has deep implications for speech codes. It means that even if the ADHD student can control their impulsive outbursts while taking Ritalin, the speech code must be applied on the assumption that they will have occasional outbursts without it. The speech code must be applied to accommodate how the aspie professor would interact with colleagues if they didn’t use the social and communicative strategies they’ve spent decades practicing. The only exception to this ‘mitigating measures’ principle is that short-sighted people are expected to wear glasses or contacts. Otherwise, ADA puts the burden of accommodation squarely on the university, not on the neurodivergent.

4) ADA rights at universities aren’t restricted to the classroom. They extend to all courses, programs, and activities at a university. This includes extracurricular and social activities, where speech codes can become especially discriminatory against neurodiversity. For example, for someone with Asperger’s, a vague policy against ‘unwelcome sexual language’ may be much more dangerous at a faculty party or student club than in a biochemistry lecture. If a speech code can be used to punish you in any given university context, then the ADA can help protect you in that context.

5) The ADA protects disability rights for everyone at universities, regardless of their citizenship status, just as the First Amendment protects everyone’s free speech rights. This includes undergrads who are undocumented immigrants, graduate students on F-1 visas, and junior faculty on J-1 visas. You don’t have to be a U.S. citizen to use the ADA strategy.

Some of these details of the ADA may sound questionable if you’re unfamiliar with disability law, but they’ve all been upheld in many court decisions, and they can be used by the neurominorities to fight unfair speech codes. We have to take our weapons where we find them. Just as social justice activists weaponized an overbroad interpretation of Title IX to infringe on First Amendment rights in the name of sexual diversity, we can weaponize ADA to fight for First Amendment rights in the name of neurodiversity

research all of your university’s current speech codes. Most schools post their policies online, but they speech codes are usually scattered all over the place – in student handbooks, faculty handbooks, board of regents policies, and administrative policies – and none of them are labelled ‘speech codes’. The speech restrictions are usually hidden inside ‘respectful campus policies’, ‘bias incident policies’, ‘sexual misconduct policies’, ‘residence life policies’, etc. It’s useful to check the FIRE website for your school, which analyzes unconstitutional speech codes for many universities. Read the speech codes carefully. Cut and paste them into a document, and make comments on anything you might find confusing or difficult to follow. This can be a very useful exercise even if you don’t have a mental disorder.