At Louisville, Proposed Policy Changes are Problematic

The University of Louisville is inviting comment from the university community about proposed changes to the school's code of conduct, including a new Values Statement and a new faculty, staff, and administrator Code of Conduct. FIRE was invited to review the drafts of the new policies by a faculty member concerned about possible violations of individual rights. We have a few comments about certain requirements we think might pose problems, were these policies to be enacted.

First, the proposed Values Statement reads, in relevant part:

Members of the University of Louisville community share these core values:

[...]

- Respect for diversity in all its human dimensions;

- Civility in our interactions[.]

While likely well-intentioned, this statement unfortunately is ambiguous about whether or not students will be required to conduct themselves with "civility" and "respect for diversity." As a public university, Louisville cannot require that students do either; indeed, the vast majority of instances of "uncivil" or "disrespectful" speech are protected by the First Amendment. Because this statement is not clearly aspirational, it leaves students to wonder whether or not they risk punishment by engaging in speech that some might find uncivil, disrespectful, or simply offensive. This uncertainty will result in an impermissible chilling effect on campus, as students will self-censor rather than leave themselves subject to possible sanctions for their speech.

Luckily, this potential problem has an easy fix. Louisville can remedy the uncertainty by including language indicating to students that the Values Statement is purely aspirational and does not represent official policy. Indeed, Penn State did exactly that to remedy a similar problem earlier this year. FIRE wrote Penn State President Graham Spanier to point out the ambiguity of the school's Penn State Principles, which required students to "respect the dignity of all individuals within the Penn State community." President Spanier acknowledged the problem and added additional language to the Principles to clarify that they were aspirational and not mandatory commitments.

The other potential flaw FIRE has located is in the proposed Code of Conduct for faculty, administrators, and staff. The proposed Code reads, in relevant part:

When dealing with others, community members are expected to:

· be respectful, fair, and civil[.]

Obviously, our concerns here are similar. While we take no position on this civility requirement as applied to administrators and staff, it is a potential problem to require that faculty members be "civil" and "respectful" on campus, even in the academic or pedagogical context. While the university has a right, as a public employer, to require faculty members to comport themselves in a reasonable and professional manner, a vague, open-ended "civility" requirement like this could potentially be used to silence certain faculty members in their interactions with students and colleagues, particularly if their speech is unpopular. It is unfortunately not difficult to imagine an academic argument over a particular theory or interpretation of data prompting a charge of "disrespect" or "incivility," thus possibly resulting in unjust and unconstitutional punishment (not to mention short-circuiting a potentially useful exchange of ideas). Again, the fix here is clear: Louisville's Code of Conduct must make plain that with regard to faculty, the requirement to be "respectful" and "civil" can in no way be interpreted to supersede the university's clear guarantee of academic freedom for faculty, which is contained elsewhere in the code.

Regarding civility requirements more generally, it's useful to remember the words of U.S. Magistrate Judge Wayne Brazil from his opinion striking down the California State University system's civility requirement in College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007):

There also is an emotional dimension to the effectiveness of communication. Speakers, especially speakers on significant or controversial issues, often want their audience to understand how passionately they feel about their subject or message. For many speakers on religious or political subjects, for example, having their audience perceive and understand their passion, their intensity of feeling, can be the single most important aspect of an expressive act. And for many people, what matters most about a particular instance of communication is whether it inspires emotions in the audience, i.e., whether it has the emotional power to move the audience to action or to a different level of interest in or commitment to an idea or cause. For such people, the effectiveness of communication is measured by its emotional impact, by the intensity of the resonance it creates.

How is all this relevant to our review of the University's civility requirement? Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. [...] Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement "to be civil to one another" and the directive to eschew behaviors that are not consistent with "good citizenship" reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

We hope Louisville heeds both Judge Brazil's words and our concerns, and that Louisville edits the policy proposals to ensure compliance with the First Amendment and to uphold the noble ideal of the university as a true marketplace of ideas.