Binghamton Part 2: A Focus on Speech Codes

The lead editorial in the current Binghamton Review, which calls for dramatic changes to the leadership of Binghamton University's (BU's) Department of Social Work ("FIRE Laura Bronstein"), points out that even with two dramatic violations of student rights in the department in the past twelve months, BU's situation—on paper, at least—is far better than those of the majority of their fellow colleges and universities. The Review explains that

compared to other colleges, Binghamton University is one of the most free, at least in terms of commitment to free expression. According to a report by FIRE, over 70% of colleges and universities restrict the speech of their students or faculty. Though Binghamton University is not one of the eleven schools to earn FIRE's "green-light" rating—signifying no policies which restrict free speech—BU has earned a moderate "yellow-light" rating, meaning we are in a better position than most.

FIRE defines a "yellow-light" institution such as Binghamton this way:

A "yellow light" institution has some policies that could ban or excessively regulate protected speech. The colleges and universities that earn yellow lights may have policies that restrict a significant amount of protected expression.

This, of course, is better than a "red-light" rating, which is earned when a university maintains at least one policy that clearly and substantially restricts freedom of speech.

But of course, it doesn't take a "red-light" rating to demonstrate a willingness to severely undermine student rights. The University of Delaware, while not having any speech code policies that clearly violate the First Amendment, ran a now-notorious "treatment" program in its residence halls to bully and shame its students into adopting a pre-packaged ideology on everything from race and gender issues to the environment. Another "yellow-light" institution, Yale University, capitulated to theoretical threats from violent extremists by removing cartoons depicting Mohammed from a book about those very cartoons. More recently, it torpedoed a student council's T-shirt design because it contained the allegedly hateful term "sissies." And of course, Binghamton's Department of Social Work has shown itself to be no friend of the First Amendment, either—first with its attempt to make a pariah out of Andre Massena last year, and most recently with its shady expulsion of Michael Gutsell.

A separate article in the Review ("FIRE and the State of Speech on Campuses") more closely examines the specific policies in place at BU that earn the university its "yellow-light" rating and explains why they are problematic. See, for example, Binghamton's Policies on Bias and Hate Speech, which Review writer Gabrielle Pontillo points out is "so vague and all-inclusive that almost any action can be construed as a 'bias incident.'" Pontillo writes:

In addition to preventing and prosecuting hate/bias crimes, New York State University Police, staff in the Division of Student Affairs, the University Ombudsman and the Affirmative Action Office assist in addressing bias-related activities that do not rise to the level of a crime. These activities, referred to as bias incidents and defined by the University as acts of bigotry, harassment or intimidation directed at a member or group within the Binghamton University community based on national origin, ethnicity, race, age, religion, gender, sexual orientation, disability, veteran status, color, creed or marital status, may be addressed through the State University of New York's Discrimination Complaint Procedure or the Rules of Student Conduct. Bias incidents may be reported to University Police or to staff as noted above.

Pontillo continues:

Another "yellow-light" policy of ours tackles the issue of advertisement and posting on campus. "Advertisements should avoid demeaning, sexist or discriminatory portrayal of individuals." It seems that the university has placed this rule on students as a way of ensuring that no one gets their feelings hurt. I think someone should call the administration out on their bullshit. Wait, am I not allowed to say that? Or would that be considered "demeaning"?

Then there is the university's definition of harassment, which according to the student handbook, is "conduct intended to harass, annoy, threaten or alarm another person."

She does point out that—at least to her knowledge—no BU student has been charged for violating these policies. But as FIRE has explained before, just because a policy hasn't yet been enforced doesn't change the constitutionality of the policy. As Pontillo notes, "the potential for abuse does still exist due to the vague and broad nature of our code of conduct. Hence, our 'yellow-light' rating stands for another year." Not to mention the chilling effect on speech an overbroad or vague policy engenders on campus, as students self-censor rather than risk punishment for protected speech.

Harrowing as Andre Massena's and Michael Gutsell's experiences with BU's Department of Social Work have been, though, the Review editorial is right in saying that Binghamton is indeed more free than many of its counterparts (especially in New York, which fares particularly badly with its speech code ratings). If someone got a few copies of our new handbook Correcting Common Mistakes in Campus Speech Policies into the BU administration's hands, they'd realize just how easy it is to change the few troublesome policies there for the better.

The ease with which they can do so, of course, heightens the frustration at the fact that they haven't done so yet. Consider this lofty statement FIRE's Samantha Harris made about Binghamton's commitment to free speech here on The Torch:

SUNY Binghamton is very close to being a "green light" university, and FIRE would love to be able to turn it over to "green light" status since it seems so committed to the First Amendment rights of its community members.

Very nice. Unfortunately, she wrote those words in 2005.