The State of Free Speech on Campus: Vanderbilt University
February 17, 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 Vanderbilt University.
Vanderbilt receives a red-light rating, which means it maintains at least one policy that clearly and substantially restricts protected speech. Because Vanderbilt is a private university, however, we must first explain why we believe students and faculty there are entitled to the same expressive rights they would have at a public university bound by the First Amendment. Simply put, the answer is found in the university's own promises to its students and faculty, which may be considered contractually binding on the university. Vanderbilt's Faculty Manual contains a section on Academic Freedom and Responsibility, which provides that:
Vanderbilt University is a community of men and women devoted to the search for truth. ... The University is also part of the civic community in which it exists. Its members, both faculty and students, are entitled to exercise the rights of citizens and are subject to the responsibilities of citizens. (Emphasis added).
The Student Handbook also states that:
The University is committed to providing opportunities for the free and open exchange of ideas both inside and outside the classroom. It will safeguard the undisturbed, orderly expression of diverse views and opinions as well as the opportunity for their careful examination.
Based on these statements, individuals considering whether to study or teach at Vanderbilt would almost certainly believe that the university would provide them with the same rights to free speech as their counterparts at any of Tennessee's public universities. Unfortunately, however, Vanderbilt maintains policies that deprive members of the university community of the very rights they are promised.
The most problematic statements of policy are found in a Sexual Harassment Brochure published by Vanderbilt's Equal Opportunity and Affirmative Action Office, otherwise known as the Opportunity Development Center. According to the brochure:
What is sexual harassment? Generally, sexual harassment is any unwanted, unsolicited, or undesired attention of a sexual nature.
The brochure also separates sexual harassment into "several categories," and provides examples of each. "Gender harassment," for example, is defined as "[s]exist remarks and behavior that are not intended to lead to sexual activity. Remarks or jokes that denigrate because of gender fall into this category." Also prohibited is "seductive behavior," defined as "[i]nappropriate or offensive behavior that is not necessarily threatening, but usually produces feelings of discomfort in the person toward whom it is directed."
Both the definition and the examples given in this brochure prohibit far more than actual harassment. And the university knows this full well, since the brochure also mentions how sexual harassment is "legally defined." As a university that promises free expression, Vanderbilt should only prohibit harassment as "legally defined," and yet its broader definition of harassment and the examples provided go far beyond that. First, the brochure informs its readers that "any unwanted, unsolicited, or undesired attention of a sexual nature" (emphasis added) constitutes sexual harassment, whereas to legally constitute sexual harassment the sexual conduct must be "so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school." Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Much of the conduct prohibited by Vanderbilt, such as "sexist remarks" and "jokes that denigrate because of gender," will rarely—if ever—rise to the level of true harassment. In fact, many "sexist remarks" may actually be the kind of core political speech that is at the heart of what the First Amendment protects; arguments against abortion, mothers working outside the home, and so forth may be perceived as "sexist" by those who disagree with them, but they are nonetheless an important part of the type of open dialogue that should exist at a liberal arts university.
Also problematic is Vanderbilt's Community Creed, which appears to require students to commit themselves to Vanderbilt's institutional values (which include "civility" and "caring") as a condition of membership in the university community:
Individuals who join the Vanderbilt University community embark on a lifelong journey toward greater intellectual enlightenment and personal growth. Those who aspire to this purpose share an obligation to honor the principles that define Vanderbilt. The University's enduring tradition of excellence is preserved when the community is united by a common set of values...We pledge to foster the values set forth in the Vanderbilt Community Creed and confront behaviors that threaten the spirit of our community. (Emphasis added).
Many universities maintain these types of creeds, and when confronted about them argue that they are merely aspirational statements about the values the university hopes its students will respect. Aspirational statements are absolutely fine, but the university must be very careful to word the statement so that its aspirational nature is clear; when universities (like Vanderbilt) use the language of obligation ("share an obligation," "we pledge," etc.), students are likely to believe that they could face disciplinary action for any speech inconsistent with the university's institutional values, and act accordingly. This sort of chilling effect on protected expression is impermissible at an institution that promises freedom of speech. Other universities, such as Penn State, have made important changes to their university creeds to clarify their aspirational nature, and Vanderbilt should do the same.
Vanderbilt also maintains a prohibition on "lewd or lascivious conduct or expression" that, while fairly narrow in scope, also threatens protected expression. While a prohibition on "obscene" expression has a specific legal definition that does not include protected speech (unprotected obscenity has been defined by the Supreme Court as only those depictions of sexual conduct that "taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value," Miller v. California, 413 U.S. 15 (1973)), "lewd" and "lascivious" have no such specific definitions and thus could be construed to mean almost anything. For example, some might find a production of Eve Ensler's The Vagina Monologues to be lewd, but banning an important work of social and political commentary would be wholly inappropriate at an institution that promises the right to free expression.
Finally, Vanderbilt maintains an onerous three-week preregistration requirement for outdoor events that limits the ability of Vanderbilt student groups to hold spontaneous—or even timely—demonstrations and protests in response to unfolding events. The stated reason for the three-week requirement is that "it takes 3 weeks to obtain tent permits," but the policy explicitly applies to "all outdoor events," whether or not a tent permit is requested. While some groups may wish to hold events of a scale that do indeed require significant advance planning, there needs to be a procedure for student groups who wish to engage in spontaneous free expression on campus to do so without having to register their intent weeks in advance.
Stay tuned next week for our examination of the state of free speech at Notre Dame.