Watchdog organization gives SVSU an "E" in free speech
February 25, 2008
The Valley Vanguard
SVSU has received the Foundation for Individual Rights in Education's (FIRE) most severe rating for its speech code.
On its Web site, www.thefire.org, FIRE says that the University has "at least one policy that both clearly and substantially restricts freedom of speech."
Last November, FIRE included SVSU's speech policy as its "Speech Code of the Month."
Its mission statement on the site states, "The mission of FIRE is to defend and sustain individual rights at America's colleges and universities. These rights include freedom of speech, legal equality, due process, religious liberty, and sanctity of conscience."
The foundation has taken issue with a provision in SVSU's policy on discrimination, sexual harassment and racial harassment that states, "Physical acts or threats or verbal slurs, invectives or epithets, taunting or verbal abuse, degrading comments or jokes referring to an individual's race, religion, sex, sexual orientation, national origin, age, marital or familial status, color, height, weight, handicap or disability are strictly prohibited."
"As with so many Speech Codes of the Month, this policy is just plain silly," said FIRE Director of Legal and Public Advocacy Samantha Harris. "No degrading jokes about height? Weight? Age? Isn't that what pretty much every prime-time sitcom in America revolves around?"
University officials were not aware of FIRE's comments pertaining toward SVSU until the Vanguard sought comment.
"With respect to SVSU's policy, there are no allegations that this policy has been inappropriately applied to curtail any student's free speech rights," said SVSU Director of Media Relations J.J. Boehm. "SVSU treats matters of free speech very seriously and defends free speech and its companion, academic freedom, quite vigorously. I would point to last year's controversy surrounding Angels in America as one such example."
The Pulitzer Prize-winning play Angels in America was performed at SVSU last year and sparked an outcry from conservative family groups for featuring male nudity and homosexuality. SVSU President Eric R. Gilbertson addressed those concerns at the time with an open letter on SVSU's Web site defending the play and championing free speech.
FIRE's Web site provided a brief legal analysis of the constitutionality of the provision in question.
"The Supreme Court has held that harassment is conduct 'so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit' in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999)," Harris said. "The mere fact that a comment or joke was made maliciously does not mean that it rises to this level. And as a public university, SVSU cannot prohibit or punish constitutionally protected speech, no matter how offensive or malicious it might be."
Boehm says that as a result of FIRE's comments, the University might scrutinize the provision in more detail than usual during its annual review.
"This particular policy may receive additional attention as a result of having this brought to our attention," he said. "But since there have been no cases where this is alleged to have been misapplied, there is no cause to reevaluate it before its scheduled review later this year."
"First, what is important to understand is that even if the University has not used the policy to punish constitutionally protected speech, its existence on the books is a violation of the First Amendment," she said.
Boehm provided some justification for the provision.
"It's important to bear in mind with this, as with any policy, that there needs to be a 'common sense' approach to enforcement, and judgment needs to be exercised as to whether any statement rises to the level of harassment," he said. "If a joke or comment has malicious intent or is meant to intimidate, it may be considered harassing.
"The exchange of ideas is at the heart of a university," he added. "I'd reiterate that SVSU has gone to considerable lengths to protect freedoms, even when doing so has been unpopular in some quarters."
Harris said that the foundation is happy to hear that SVSU is considering revising the policy, however she rejects Boehm's assessment.
"The University's statement that 'if a joke or comment has malicious intent, it may be considered harassment' is legally inaccurate." she said.
The policy is reviewed annually by SVSU's Student Services and Enrollment Management division. According to Boehm, the next review will take place later this year.
Prohibited are physical acts or threats or verbal slurs, invectives or epithets, taunting or verbal abuse, degrading comments or jokes referring to:
- Sex & orientation
- National origin
- Height & weight
- Watchdog organization gives SVSU an "E" in free speech, PDF, 14.1 KB , The Valley Vanguard