The State of Free Speech on Campus: UC–Berkeley
February 9, 2009
Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at the University of California–Berkeley.
UC–Berkeley receives a yellow-light rating, which means that there are one or more policies in place that can too easily be used to restrict protected speech. A yellow-light institution differs from a red-light institution in that its policies do not explicitly prohibit large quantities of protected expression. At a yellow-light institution, policies either contain narrower restrictions on protected expression or, while not banning protected expression outright, are written in such a way as to be susceptible to abuse.
Like students at UCLA, students at UC–Berkeley are also governed by the University of California Policy on Sexual Harassment, which defines sexual harassment as:
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects a person's employment or education, unreasonably interferes with a person's work or educational performance, or creates an intimidating, hostile or offensive working or learning environment.
As we explained in our post about UCLA's speech codes, the UC sexual harassment policy not only contains no requirement of severity or pervasiveness, it also allows speech to be prohibited if it "implicitly affects a person's employment or education"—a vague definition that could mean almost anything. Under the plain language of this policy, offensive expression that has even the most minor effect on a UC student could be punished as harassment. Unfortunately, since this policy governs the entire UC system, no school within the system can attain a green-light rating until this vague policy is revised.
UC–Berkeley also maintains a Respect and Civility Statement providing that:
[T]he administration of this University publicly declares its expectation that all members of the campus community will work to develop and maintain a high degree of respect and civility for the wealth of diversity in which we are all fortunate to live and work together.
As we have discussed extensively at FIRE in recent weeks (see our discussions of Penn State and University at Buffalo), universities may maintain aspirational statements delineating the values it hopes its students will adopt, but they may not infringe on students' rights to free speech and conscience by actually requiring students to adopt those values as a matter of policy. Berkeley's civility statement treads a fine line, because it uses the language of "expectation"—which would indicate such values are required—but it also refers students to the university's conduct code for "specific regulations regarding respect and civility." Fortunately, the conduct code does not contain regulations infringing on students' rights. Because it is unclear whether the civility statement can itself form a basis for disciplinary action, FIRE has designated it as a "yellow-light" policy; while not explicitly prohibiting protected expression, it is certainly ripe for abuse, and FIRE does not feel that students' rights are fully safeguarded so long as this policy is maintained in its current form. The university should add language—like Penn State has just done—clarifying that the Respect and Civility Statement is aspirational and cannot be used as the basis for disciplinary action.
The university also maintains a policy regarding posting in the residence halls which provides that "Flyers should not include or allude to alcohol or drugs, be obscene or libelous, or have commercial content." This policy, while fairly narrow in its application, is overbroad and prohibits protected speech. While the university may regulate posters that explicitly promote illegal activity (such as a poster inviting underage students to drink at a party or a poster advertising illegal drugs for sale), it may not prohibit a student group from advertising, for example, a debate about marijuana legalization or an Alcoholics Anonymous meeting. Concern over abuse of a policy like this is more than theoretical; several years ago, Colorado State University maintained a similar policy prohibiting "any reference to alcoholic beverages or drugs" in the residence halls, and that policy was used to prohibit the Campus Libertarians from posting flyers advocating for a Colorado drug reform ballot initiative because the flyers contained an image of a marijuana leaf. Colorado State has since revised its policy to require only that advertisements not "promote illegal behavior," and Berkeley should do the same.
Finally, Berkeley maintains a policy on Areas for Public Expression which states that "[t]he Sproul Plaza and Lower Sproul Plaza have traditionally been designated as areas for public expression." It is unclear from the language of the policy whether those two areas are simply the preferred areas for students to engage in expressive activity, or whether expressive activity is prohibited elsewhere on campus. If it is the latter, then this is an impermissible "free speech zone" policy, since students on Berkeley's large campus can surely demonstrate in more than just two locations without threatening campus order. The university should clarify that free expression is allowed on other areas of campus, including traditionally public areas like greens, sidewalks, etc.
Stay tuned next week for information on free speech at Vanderbilt University.