DePauw University’s Speech Code: No ‘Mimicking’ Allowed!

Since I have taken Wabash College to task in a recent post, it is only fair for me to say a few words about Wabash's longtime Indiana rival, DePauw University. Unfortunately, my work is made quite easy by DePauw's quite appalling speech code.

FIRE gives DePauw a red-light rating because of its policies that both clearly and substantially restrict freedom of speech. DePauw promises that "students are free to examine and discuss all questions of interest to them and to express their opinions publicly and privately." But this is not true.

For one thing, DePauw states explicitly that its harassment rules go beyond the law:

To be unlawful, conduct must be so severe and pervasive that it unreasonably interferes with an employee's ability to work or a student's ability to learn. The University does not, however, condone or tolerate any inappropriate conduct, whether by employees or non-employees, based on a person's race, sex, color, creed, religion, ... [emphasis added]

Here are the examples of "inappropriate conduct"—apparently one such instance is enough, for no such conduct is tolerated:

Inappropriate conduct may include, but is not limited to:

• Ethnic, racial, religious, age, disability or sex-related jokes, epithets, stereotypes or slurs.
• Foul or abusive language.
• Offensive graffiti, cartoons or posters.
• Insulting or derogatory nicknames.
• Mimicking another.
• Starting or spreading rumors.
• Teasing about religious or cultural observances, retirement, age, ability to learn, or absenteeism.
• Threatening or offensive mail, e-mail, voicemail or messages.

Amazingly, all—not just some, but all—of these examples are about speech, not conduct. "Stereotypes" (of various kinds, otherwise unspecified) are banned, as are "mimicking" and "teasing about ... absenteeism" and "derogatory nicknames."

As for sexual harassment, DePauw further restricts speech. Here, most of the examples concern speech instead of conduct.

Such behavior may include, but is not limited to:

• Unsolicited and unwelcome comments or conduct of a sexual nature or that are demeaning to women or men as a group (for example, offensive or vulgar jokes, name-calling, comments about one's body or sex life, or stereotyping based on a person's sex);
• Unwelcome and unwanted sexual jokes, language, gestures, epithets, innuendoes, advances or propositions; sexually oriented "kidding," "teasing" or "practical jokes;"
• Sexually oriented propositions, slurs, suggestions or questions;
• Written or verbal abuse of a sexual nature, including, for example, using sexually degrading or vulgar words to describe an individual;
• The display of sexually suggestive or revealing objects, other material or offensive pictures, electronic communications or photographs (this prohibition does not apply to University approved art exhibitions or other University approved displays or communications);
• Unwelcome and unsolicited information about another's sexual prowess, activities, deficiencies or sexual orientation;
• Asking questions or commenting about another's sexual activity or making unwelcome sexual advances or expressed or implied requests for sexual activity;
• Offensive or inappropriate behavior targeted at only one sex, even if the content of the conduct or comments is not sexual;
• Unwelcome physical contact, such as patting, pinching, touching, leering, ogling, whistling, indecent exposure, brushing against the body, or suggestive, insulting or obscene comments or physical gestures. [Emphasis added; some examples omitted.]

One of my favorites here is "Offensive or inappropriate behavior targeted at only one sex, even if the content of the conduct or comments is not sexual." That's right: at DePauw, you can be branded a "sexual harasser" without actually mentioning anything sex-related—which removes all meaning and legitimacy from the term. I can understand why some people on campus would not want to be subjected to material they find offensive or inappropriate, to negative stereotypes, to "slurs," and to some of the other speech proscribed here. But these proscriptions would never pass constitutional muster at a public college, for words such as "inappropriate" are unconstitutionally vague and give administrators incredible discretion to police speech. The result is a chilling effect on speech, for students at DePauw really do not know what they are truly allowed to say and what they may not say. Remember, no instance of such "conduct" is tolerated at DePauw. And DePauw has not even provided a full list of intolerable expression ("Such behavior may include, but is not limited to ...").

Add these restrictions to the following one, and there's nowhere on earth that DePauw students are safe to express their constitutional rights: "At DePauw, we have a vital interest in the character of our students and may regard off-campus behavior as a reflection of a student's character and his/her fitness to continue to be a member of the student body." So, don't mimic your little brother when you go home for Thanksgiving, because he might call DePauw and make a credible claim, under the rules, of punishable harassment.

Again, DePauw promises that "students are free to examine and discuss all questions of interest to them and to express their opinions publicly and privately." This promise is totally inconsistent with DePauw's speech code. I haven't even provided all of it yet. Here is part of DePauw's Electronic Communications and Acceptable Use Policy:

Electronic communication facilities shall not be used to access or transmit electronic communication[s] which promote or contain offensive, unlawful or inappropriate content, including, but not limited to content that is slanderous, defamatory, harassing, vulgar, threatening, intimidating, offensive, or that promotes hate or violence; or which is racially inflammatory or inappropriate; or which is pornographic, or sexually offensive; or which consists of offensive comments based on gender, or any other content that denigrates or demeans persons on the basis of race, age, gender, national origin, disability, religion, sexual orientation or any basis protected by law. This prohibition shall not apply to educational and professional work that requires such access or transmission.

Run this one through First Amendment analysis, and the red ink just won't stop flowing.

DePauw's official seal includes the words "DECUS LUMENQUE REIPUBLICAE COLLEGIUM" ("the college is the honor and light of the republic"). How can DePauw students adequately fulfill their roles as adult citizens of the U.S. republic if the rules they live under at DePauw give them so much less freedom than they enjoy off campus and DePauw can even punish them for off-campus speech?