FIRE Speech Code Memorandum for Salem State University
October 3, 2013
To: Daniel Morris, Students For Liberty, Salem State University
From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Date: October 3, 2013
Re: Speech Codes at Salem State University
This memorandum is in response to your request for information about how Salem State University’s “red light” policies can be revised to better protect students’ right to free speech and expression under the First Amendment.
FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech. Salem State currently maintains two red light policies, which we define as policies that clearly and substantially prohibit protected speech. The university therefore earns an overall red light rating from FIRE.
Fortunately, both of Salem State’s red light speech codes could easily be revised to protect student discourse and meet the university’s moral and legal obligations under the First Amendment. FIRE would be very pleased to work with the students and administration of Salem State to improve the university to an overall yellow light rating, as this rating change would be an important step forward by itself.
What follows is a discussion of the First Amendment issues with each of the university’s red light speech codes and proposed solutions for remedying those defects.
I. Student Code of Conduct: Sexual Harassment
This policy prohibits, in relevant part:
Objectionable, unwanted sexual attention from either a person in a position of authority or power or from a peer. Sexual harassment also can involve verbal or written communication of a sexual nature that creates an intimidating, hostile, or offensive educational living [sic] or work environment.
Salem State’s policy on Sexual Harassment violates students’ free speech rights by banning any “verbal or written communication of a sexual nature” that creates an “intimidating, hostile, or offensive” educational environment. This definition of sexual harassment is overly broad and thus reaches speech protected by the First Amendment. While the university is legally and morally bound to prevent sexual harassment of students on its campus, it must define sexual harassment properly in order to insure it does not abandon its concurrent obligation to respect the First Amendment rights of its students.
The policy is overly broad because much speech of a “sexual nature” is protected by the First Amendment even if it is subjectively found by another person to be “intimidating, hostile, or offensive.” Consider, for example, a heated debate between students about the issue of gay marriage, or about reproductive choice, or about preventing the spread of sexually transmitted diseases. Students on a public university campus should be encouraged to engage in debate on these and other important matters of the day—not discouraged and possibly even punished simply because the discussion involves sexual topics and makes another person on campus uncomfortable. As the Supreme Court of the United States famously declared, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). Even more centrally to the public university campus, the Court has stated that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
Salem State’s policy fails to recognize these principles, rendering it overbroad on its face. A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973).
The policy’s ban on “[o]bjectionable, unwanted sexual attention” from a peer is likewise susceptible to an overbreadth challenge. Under this standard, it is unclear how it will be determined whether speech by a fellow student is “objectionable”—will it be judged from the complaining individual’s perspective, or under a “reasonable person” standard? Furthermore, the ban on “unwanted” sexual attention from a peer could encompass a merely awkward compliment or a request for a date that the complaining individual turns down. At a public university bound by the First Amendment, such speech must not be found to constitute actionable sexual harassment.
Fortunately, the solution to this problem is fairly simple and has been provided by the Supreme Court. In Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), the Court set forth the controlling standard for student-on-student (or peer) hostile environment harassment in the educational setting. The Court held in Davis that peer harassment in the educational setting is targeted, discriminatory conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” By definition, this includes only extreme and usually repetitive behavior—behavior so serious that it would prevent a reasonable person from receiving his or her education.
The Supreme Court’s standard properly balances universities’ obligations to both uphold student speech rights and prevent true harassment. Moreover, as the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this issue. Only a policy matching that standard is permissible at a public university that, like Salem State, is bound by the First Amendment. Therefore, Salem State would be well advised to replace the current language in its Sexual Harassment policy with the Davis standard, and to incorporate this standard, in all of its elements, into any other policies addressing peer harassment.
II. Guide to Living on Campus: Policy Against Racism (Red Light)
This policy states, in pertinent part:
This policy prohibits racism, anti-Semitism and ethnic or cultural intolerance. It prohibits all actions or omissions—including all acts of verbal harassment or abuse—that deny or have the effect of denying anyone his or her rights to equality, dignity and security on the basis of his or her race, color, ethnicity, culture, or religion. It reaffirms the doctrine of civility, appreciation for cultural/racial pluralism and the pre-eminence of individual human dignity as pre-conditions for achieving an academic community that recognizes and uses the resources of all persons.
While well-intentioned, Salem State’s policy restricts a wide swath of First Amendment activity.
To begin with, the policy “prohibits racism, anti-Semitism and ethnic or cultural intolerance.” These terms potentially encompass such protected speech as debate about affirmative action, illegal immigration, the Israeli-Palestinian conflict, and many other important matters of the day touching upon issues of race, culture, and religion. Students at Salem State should not be censored from engaging such vital topics or punished for doing so simply because another student or a university administrator deems the expression to be unwelcome or offensive. Indeed, the Supreme Court long ago made clear that social and political commentary lies at the core of the First Amendment’s protections, stating that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” reflecting “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (internal quotations omitted).
Second, the policy “prohibits all actions or omissions—including all acts of verbal harassment or abuse—that deny or have the effect of denying anyone his or her rights to equality, dignity and security on the basis of his or her race, color, ethnicity, culture, or religion.” It is unclear what the university intends by this provision, under which students will be forced to guess whether particular expression constitutes an “action or omission” in violation of this policy. Students may well ask what constitutes an “omission” that nevertheless violates this policy. What does “verbal harassment or abuse” mean, given that peer harassment in the educational setting has a specific legal definition (as discussed above)? What speech might be found to “deny” the “dignity” of another person on the basis of one of the listed personal characteristics?
The confusion engendered by Salem State’s policy on these and other points likely renders the policy unconstitutionally vague. A law or regulation is unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, students are given insufficient notice of their expressive rights, and are effectively left to guess whether their speech may subject them to investigation or disciplinary action. This will understandably chill student discourse and dialogue, a particularly harmful and unfortunate result on a public university campus.
Third, the policy “reaffirms the doctrine of civility, appreciation for cultural/racial pluralism and the pre-eminence of individual human dignity as pre-conditions for achieving an academic community that recognizes and uses the resources of all persons.” Once again, it is unclear how this provision is consistent with Salem State’s legal and moral obligation to protect students’ freedom of expression. Under Salem State’s policy, are students truly expected to engage in only speech that is characterized by “civility”? Will students be punished for failing to exhibit “appreciation for cultural/racial pluralism”? Will speech that is determined to deny the “human dignity” of another person be censored or made subject to disciplinary action?
As mentioned previously, the vagueness of Salem State’s policy will almost certainly have a chilling effect on student speech. As the Supreme Court has observed, “[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Grayned, 408 U.S. at 109 (internal citations and quotation marks omitted).
If Salem State wishes to encourage (but not require) such values as “civility” and “dignity,” it may do so without violating its First Amendment obligations. The university would simply need to make clear that this policy is purely aspirational, and that students will not face investigation or disciplinary action for not abiding by its terms. In this manner, the university can share its values with the student body and encourage them to adopt those values themselves, without infringing upon their free speech rights. A good example of such aspirational language can be found in Pennsylvania State University’s “Penn State Principles.” The preamble to the Penn State Principles states:
The Penn State Principles were developed to embody the values that we hope our students, faculty, staff, administration, and alumni possess. At the same time, the University is strongly committed to freedom of expression. Consequently, these Principles do not constitute University policy and are not intended to interfere in any way with an individual’s academic or personal freedoms. We hope, however, that individuals will voluntarily endorse these common principles, thereby contributing to the traditions and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow.
By adopting similar aspirational language, Salem State can encourage its students to follow those values that the institution prefers, while at the same time respecting students’ freedom of speech.
In addition to including such aspirational language, the university would need to revise the current policy language to state that students are “encouraged” to refrain from “racism, anti-Semitism and ethnic or cultural intolerance”—rather than declaring, “This policy prohibits racism, anti-Semitism and ethnic or cultural intolerance.” Likewise, the policy must state that students are “encouraged” to refrain from “actions or omissions … that deny or have the effect of denying anyone his or her rights to equality, dignity and security on the basis of his or her race, color, ethnicity, culture, or religion”—rather than stating that students are “prohibit[ed]” from engaging in such speech. Finally, Salem State would do well to revise the last sentence to state that the university “encourages” the values of “civility, appreciation for cultural/racial pluralism and the pre-eminence of individual human dignity as pre-conditions for achieving an academic community that recognizes and uses the resources of all persons.” This would ease any confusion about whether the phrase “reaffirms the doctrine” will be enforced to censor or punish protected student expression.
FIRE hopes this memorandum is helpful in your efforts to reform the red light speech codes currently maintained by Salem State University. Once again, each of these policies could easily be revised to better protect student speech. FIRE would be very pleased to work with the students and administration of Salem State to help the university meet its obligations under the First Amendment.