Red Alert at Tufts University: Satire as "Harassment

On Tuesday, FIRE announced that for the third consecutive year, we've purchased a full-page advertisement in U.S. News & World Report's college rankings issue chastising the six schools on our Red Alert list. Inclusion on this list is not grounds for celebration. To the contrary, Bucknell University, Michigan State University, Brandeis University, Colorado College, Johns Hopkins University, and Tufts University should be ashamed of this dishonorable designation, because FIRE reserves a place on our Red Alert list for those schools that have demonstrated an egregious disregard for student and faculty rights.

Part of the reason we publicly shame Red Alert schools with the U.S. News ad is to warn prospective students and their families that attending these institutions is a risky proposition, since protected expression can serve as grounds for punishment and basic rights aren't respected on campus. But the other reason we take out the ad is to let the schools know once again that being on the Red Alert list has consequences--and that there is a simple way to extricate themselves from our doghouse, if they so choose. For example, we happily removed former Red Alert school Valdosta State University from our list when, under new leadership, the school dismantled one of the worst free speech zones FIRE has ever seen. Each of the six remaining schools could just as easily remove themselves, and we're here to tell them how.

Adam covered Michigan State University yesterday, and today, I'll cover Tufts University.

Tufts is a founding member of our Red Alert list. How did it earn this dubious distinction? Well, let us count the ways--and then we'll tell Tufts how to rectify its errors.

As a quick look at our Tufts page will tell you, the school is a recidivist when it comes to violating rights on campus, racking up not one, not two, not three, but four FIRE cases in our ten years of existence. First, there was the violation of freedom of association that occurred when an evangelical student group was derecognized because it wanted to make sure its leadership shared the group's worldview--a violation FIRE helped overturn. Then there were the charges of "sexual harassment" against the conservative student newspaper The Primary Source after the paper published an editorial cartoon that an undergraduate found unflattering. Eventually, those charges were dropped--again, under pressure from FIRE.

But it's the more recent crackdown on free speech at Tufts that earned the school its charter membership on the Red Alert list. Once again, The Primary Source (TPS) was involved, this time publishing a satirical Christmas carol entitled "O Come All Ye Black Folk" in an issue published in December 2006. The piece, written to the tune of "O Come, All Ye Faithful," contains biting criticism of Tufts' consideration of race in admissions decisions--the refrain is "O come, let us accept them"--and soon sparked outrage and discussion on campus, which was presumably part of the point. Following the campus-wide dialogue the piece provoked, TPS voluntarily issued an apology. Had the story ended here, this result would have been fine: provocative speech was answered by more speech, not punishment; TPS' apology was of its own accord, not a condition of punishment or other formal coercion.

Unfortunately, things did not end there.

In April 2007, TPS ran an article satirizing "Islamic Awareness Week," which included a list of true but unflattering facts about Islam and radical Islamic terrorism. In response, offended students filed disciplinary charges against TPS, alleging that the article about Islam and the satirical Christmas carol constituted "harassment" and created a "hostile environment."

Both the carol and the article are precisely the kind of spiky, sharp-edged satire that one might expect at a school that "encourages members of the university community to develop the ability to exercise critical judgment, and supports the rights of individuals to express their views and opinions," as Tufts does.  But despite both this and other laudable promises of free speech made by Tufts to its students, the charges against the The Primary Source were somehow not dismissed outright. Instead, shockingly, Tufts' Committee on Student life found that TPS was guilty of violating the school's harassment policy.

Specifically, the Committee held that the carol targeted African-American students for "ridicule and embarassment" on the basis of their race, "intimidated them," and also "had a deleterious impact on their growth and well-being on campus." As for the Islamic Awareness Week article, the Committee held that it "targeted members of the Tufts Muslim community for harassment and embarrassment, and that Muslim students felt psychologically intimidated by the piece." As punishment, TPS was banned from publishing anonymous or unsigned articles, and the Committee urged the student government to consider both derecognizing the paper and cutting its funding.

Confronted with punishment for protected speech, TPS contacted FIRE. We wrote Tufts President Lawrence Bacow, pointing out that finding TPS guilty of harassment for publishing satirical articles violated the promises Tufts made to its students. As we wrote:

Printing a parody, no matter how objectionable to some, is in no way tantamount to "harassment." As the Office for Civil Rights of the United States Department of Education stated in a July 28, 2003 letter to college administrators, harassment is legally understood to require "something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive." Rather, to legally constitute "hostile environment harassment," the behavior in question must be "sufficiently serious (i.e., severe, persistent or pervasive) as to limit or deny a student's ability to participate in or benefit from an educational program." Clearly, the parody here in question could not possibly be construed as an example of "hostile environment harassment." Offended students, after all, were under no duty to read TPS.

The ACLU of Massachusetts followed with a letter of its own soon thereafter, also blasting Tufts for its illiberal decision. Negative press coverage from the New York Post, FOX News, and The Washington Times soon followed. And check out FIRE President Greg Lukianoff's open letter to New York City Mayor Michael Bloomberg, who gave the commencement address at Tufts that spring but failed to address the fact that TPS had been found guilty. (Bloomberg instead characterized Tufts' actions as "respect[ing] the rights of others to express themselves.")

After TPS appealed the decision over the summer of 2007, Tufts eventually lifted the prohibition against anonymous speech, but inexplicably decided not to strike the "harassment" finding. Bacow finally issued a comment on the case, paying lip service to the importance of "defending individual liberties," but didn't see fit to rescind the harassment verdict.

Making matters still worse, in September 2008, Tufts penned a "Draft Declaration on Freedom of Expression and Inquiry" that read more like a laundry list of types of speech students couldn't engage in than the affirmation of free speech a liberal education requires. The following month, FIRE responded to the draft with an extensive statement expressing our grave concerns about the proposed new speech code. As we wrote:

Rather than being a broad statement about the value of free inquiry on campus, the draft Declaration appears squeamish about First Amendment principles. The draft Declaration would subject Tufts community members to much more stringent regulations on expression than would ever be permissible on public campuses. It sends the message that the university is no longer prepared to cope with the challenges that come with unfettered expression, and it raises the question of why Tufts believes that it cannot succeed in its mission while meeting the same standards for freedom of expression by which public universities must abide.

A revised draft Declaration was released by the university in April 2009, and the final Declaration was approved by the Board of Trustees in November of last year. While the statement is an improvement from the initial draft (and that isn't saying much) it still leaves a lot to be desired. It's riddled with undefined commitments to elusive concepts like "basic respect" and "ethical obligations" that could surely be cited to suppress expression, were the administration to deem it necessary. As FIRE's Justice Robert H. Jackson Legal Fellow Erica Goldberg, a Tufts alumna, wrote in response: "Although Tufts' declaration and its reaction to The Primary Source's parodies caused students to discuss the ideals of free speech on campus, we fear those debating the issue may be unduly constrained by the vague command to 'respect the human dignity of others.'"

So how can Tufts erase the stains from its reputation as a prestigious university, make clear that it values free expression, and remove itself at long last from FIRE's Red Alert list? The answer is simple: Rescind the harassment finding against The Primary Source. A relatively quick fix, to be sure, but that admission of error would send a signal to current and future Tufts students that free expression is to be celebrated and protected, not punished. If Tufts has the courage of its convictions, it will finally reverse its mistake. Until then, however, the Declaration's recognition that "[f]reedom of expression and inquiry are fundamental to the academic enterprise" is worthless and Tufts remains on our Red Alert list. Until we see a change, the school has a date with next year's college rankings issue of U.S. News & World Report.