Victory: University of Idaho Drops Charges of Harassment and Discrimination for 'Offensive' Speech
May 24, 2010
After FIRE intervened, the University of Idaho (UI) abandoned disciplinary charges of "harass[ment]" and "discrimination" against student Alexander Rowson relating to political statements he made at two campus events.
On or about March 30, during César Chávez Day at UI, there was a musical performance in the food court in UI's student union building. The music was loud enough that, in Rowson's opinion, it was disrupting his class nearby. Between songs, Rowson went to the microphone and made a political statement about "how illegal immigration destroyed my home state of California." His impromptu protest lasted roughly thirty seconds, he says, and then the performance continued.
In an unrelated incident on April 22, Rowson stood outside as a student-led "Take Back the Night" rally proceeded past his dormitory. As the parade passed him, Rowson shouted comments to the group along the lines of "how liberalism is destroying America."
UI responded to the first incident by charging him with "violat[ing] the rights of the university community" by "interrupt[ing] a sponsored cultural event and [making] statements denigrating an ethnic group." In particular, because of Rowson's allegedly "denigrating" speech, UI also charged him with violating its discrimination policy. For the April 22 incident, UI similarly charged Rowson with violating its discrimination policy, stating that he "harass[ed]" the other students by "repeatedly shouting hostile and offensive statements." Rowson was also charged with disrupting the rally and, mysteriously, with "intimidation, specifically by intentionally walking into a participant in an aggressive manner." Rowson fully denies this allegation, and the identity of the accuser or the participant has never been revealed to him either in writing or in meetings with the UI administration.
As FIRE informed UI President M. Duane Nellis in our May 5 letter, UI may not punish Rowson for harassment or discrimination in these incidents; the content of Rowson's speech comes nowhere close to meeting the proper legal definition of either term. FIRE reminded President Nellis of the 2003 open letter from the U.S. Department of Education's Office for Civil Rights in response to the rising trend of universities equating allegedly offensive, but protected, speech with harassment, as UI had done here:
[I]n addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR ... Some colleges and universities have interpreted OCR's prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. [Emphases added.]
Specifically, the Supreme Court has declared that student-on-student discriminatory harassment in the university setting must rise to the level of being "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit," Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), and be targeted at those specific victims because of their protected status. Complaining to a crowd about "how illegal immigration destroyed my home state of California" is core political speech and is not harassment.
Nor, FIRE pointed out, could UI punish Rowson for "discrimination" simply for making political statements that some groups found offensive, even highly so. Indeed, speech may be most effective when it is at its most provocative, as the Supreme Court ruled in Terminiello v. Chicago, 337 U.S. 1, 4 (1949), stating that "a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." It is difficult to see how UI judged Rowson's core political speech to be unprotected discrimination, which UI's own policy describes as "[p]ractices or regulations that discriminate" against a protected group (emphasis added), such as preventing equal access to UI resources such as its dining halls and libraries.
UI Senior Associate General Counsel Charles L. Graham notified FIRE in a letter of May 13 that "the charges against [Rowson] have been amended with respect to both incidents." Rowson's charges have now been modified to eliminate all charges relating to discrimination and harassment on the basis of his protected speech.
Yet, Rowson still has no idea who his accuser is, and even worse, a new version of the disruption charge has been put forth. UI is now officially charging him with disrupting the rally "by physically walking against marchers and disrupting the flow of the event." Rowson fully denies that he was in anybody's way; he says he was off to the side just like anyone who attends a parade. Since UI has not revealed the identity of any witness, how can Rowson defend himself against unknown accusers?
Regarding the alleged interference with the musical performance, it is important to remember that this case must be treated like any similar case without regard to the content or viewpoint of the expression. Taking the microphone briefly, once, during a pause in someone else's event falls somewhere between simply speaking out of turn to interrupt someone, on the one hand, and engaging in a planned set of persistent interruptions of an event, as happened recently at UC Irvine, on the other hand.
The University of Idaho should be commended for recognizing that Rowson's speech may not be punished because of its political content. UI still has work to do, however, to fully guarantee a fair process to Rowson. The original charges made it pretty clear that UI was throwing the book at him because of his protected speech. And since the accuser is apparently to be allowed to remain anonymous, we logically wonder if his or her (or their? who knows?) interest in getting Rowson in trouble because of his disagreement with them might be stronger than their interest in telling the whole truth. Indeed, he is still facing the charge of "walking into" one of the rally participants—which baffles him because he has no idea what the accuser could mean and doesn't even know who it is. UI, without quite admitting it, has now recognized the sanctity of Rowson's free speech; it now should fulfill the basic due process expectation of letting him know the identity of his accuser and making a defense against the charges possible.