Free-speech group calls UA policies too restrictive
January 21, 2007
by Carolyne Park
A recent report by a First Amendment advocacy group criticizes the University of Arkansas at Fayetteville and schools nationwide for restricting speech on college campuses.
The nonprofit Foundation for Individual Rights in Education, based in Philadelphia, called suppression of First Amendment rights at U.S. colleges and universities a “national scandal.”
The group gave UA and 228 other institutions across the country its “red light” ranking – the lowest mark – in the report “Spotlight on Speech Codes 2006: The State of Free Speech on Our Nation’s Campuses.”
“Red light” institutions have “at least one policy that clearly and substantially restricts freedom of speech,” according to the report.
UA was criticized for “vague and over-broad” wording in its policies prohibiting discrimination and sexual harassment.
Schools such as Utah State University and Penn State have criticized the report for misrepresenting policies they say are intended to protect, rather than restrict students. UA administrators declined to comment on the report, and referred questions to the university’s associate general counsel, Bill Kincaid.
“The University is strongly committed to freedom of speech for all members of the University community,” Kincaid said in a statement. “Those values are deeply ingrained in higher education in general and in the University of Arkansas in particular.”
Quinten Whiteside, UA Associated Student Government president, said he “did not necessarily agree with the content of the report’s message.” He doesn’t feel students’ First Amendment rights are restricted at UA and hasn’t heard any complaints on the issue.
“I, as well as other students, do feel we can speak freely about issues that affect us on campus,” Whiteside said.
The report, released last month, is the first comprehensive examination of policies related to free speech at colleges and universities, said Samantha Harris, the foundation’s director of legal and public advocacy.
The group analyzed policies at 334 schools between September 2005 and September 2006, and concluded “an overwhelming majority explicitly prohibit speech that, outside the borders of campus, is protected by the First Amendment,” the report said.
In addition to the 229 schools given a “red light,” 91 were given a “yellow light” for policies that could “be interpreted to suppress protected speech,” or restrict very narrow categories of speech. Eight schools were given a “green light” for having no policies that restrict speech, and six schools couldn’t be rated.
More alarming, Harris said, was that private schools fared better than public schools, which are required by law to protect constitutional rights. Fifty-eight percent of private institutions surveyed received a red light, compared with 73 percent of public institutions.
“It’s public universities that are more restrictive,” Harris said.
UA was the only school in Arkansas included in the report, which can be viewed on the Web at www.thefire.org
According to the report, speech code policies governing expression were first enacted in the 1980s. As universities and colleges began seeing more women and members of minority groups enroll, they attempted to avoid tension by enacting policies to prohibit potentially offensive speech.
The problem, Harris said, is that in doing so they restrict constitutionally protected speech.
The U.S. Supreme Court makes only narrow exceptions to freedom of speech, such as speech that incites reasonable people to immediate violence, libel and actual harassment defined as “a pattern of severe and discriminatory behavior,” the report said.
“The Supreme Court has held that most speech that people find offensive is protected under the First Amendment,” Harris said. “There is this attitude on a lot of campuses that people have the right not to be offended. They ban free speech in the process.”
In the educational context, the courts have defined harassment as “so severe, pervasive and objectively offensive” that it effectively bars the victim’s access to an education, the report said.
At UA, the foundation criticized the university’s standards of conduct and its sexual harassment policy. Both policies contain language that is “vague and overbroad” and dangerous because of its ambiguity, Harris said.
The first policy prohibits “discrimination against any member of the university community or visitor on the campus through offensive behavior of a biased or prejudicial nature related to an individual’s personal characteristics, such as race, color, national origin, sex, religion, disability, age or sexual orientation.”
The sexual harassment policy follows the definition of the Equal Employment Opportunity Commission and prohibits “unwelcome sexual advances, requests for sexual behaviors, and other verbal or physical conduct or written communication of a sexual nature.”
The phrase “offensive behavior,” for example, is subjective and could be interpreted in any number of ways, Harris said. The foundation also believes standards meant for the workplace are unsuitable for universities, which should encourage free speech.
The question becomes who gets to decide what is or isn’t appropriate. The potential for trampling of people’s rights is too great, she said. Kincaid, UA associate general counsel, said federal law requires the university to establish and enforce policies prohibiting sexual harassment.
“Those policies do not serve as a means to censor the candid exchange of the views and ideas by students or other members of the university community which are protected by the First Amendment,” Kincaid said.
University officials regularly review and update policies and consider external feedback as “a healthy part of the process,” he said.
Whiteside said the university’s policies are meant to ensure fairness and protect students from harassment.
“I believe that students should have complete access to their rights, but they should also be responsible in utilizing them in an effective way,” Whiteside said.