Speech Code of the Month: Fayetteville State University

January 2, 2007

by Samantha Harris

FIRE announces its Speech Code of the Month for January 2007: Fayetteville State University.
 
Denying your students their First Amendment rights takes a lot of nerve. But for a public university to maintain—word for word—a policy that has explicitly been declared unconstitutional by a federal court takes chutzpah to a whole new level. That’s why Fayetteville State University in North Carolina is 2007’s first Speech Code of the Month.
 
Fayetteville State’s Code of Student Conduct prohibits racial harassment, defined as:
[V]erbal or physical behavior that stigmatizes or victimizes an individual on the basis of race and involves an express or implied threat to another person’s academic pursuits or participation in activities sponsored by the University or organizations or groups related to the University.
Rather than give you my analysis of this policy, I’ll just share with you a few quotes from the federal judge who ruled this same policy unconstitutional in Michigan back in 1989:
  • “The operative words in the cause section required that language must ‘stigmatize’ or ‘victimize’ an individual. However, both of these terms are general and elude precise definition. Moreover, it is clear that the fact that a statement may victimize or stigmatize an individual does not, in and of itself, strip it of protection under the accepted First Amendment tests.”
  • “It is not clear what kind of conduct would constitute a ‘threat’ to an individual’s academic efforts. It might refer to an unspecified threat of future retaliation by the speaker. Or it might equally plausibly refer to the threat to a victim’s academic success because the stigmatizing and victimizing speech is so inherently distracting. Certainly the former would be unprotected speech. However, it is not clear whether the latter would.”
  • “Students of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy. The terms of the Policy were so vague that its enforcement would violate the due process clause.”
Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).
 
Although Doe v. Michigan is not technically binding in North Carolina, it was a highly publicized case that is widely regarded as a landmark free speech decision, and is entirely in line with the U.S. Supreme Court’s First Amendment decisions. Fayetteville State is skating on very thin ice by maintaining this policy, which almost certainly could not survive a legal challenge.
 

For these reasons, Fayetteville State University is January 2007’s Speech Code of the Month. If you are a student at Fayetteville State and you oppose this unlawful infringement on your free speech rights, please get in touch with FIRE at (215) 717-3473 or at speechcodes@thefire.org.