Speech Code of the Month: Montclair State University

FIRE announces its Speech Code of the Month for May 2011: Montclair State University in New Jersey.

Since the death of Rutgers University student Tyler Clementi—who committed suicide last fall after two students secretly streamed video of him engaging in sexual activity with a man—universities have come under a great deal of pressure to address instances of "bullying" on campus, and to address it quickly. As we have said on numerous occasions, universities need not infringe on student speech rights in order to address situations like Tyler Clementi's sad case: Clementi was the victim of criminal conduct already prohibited both by law and by existing policy at (almost certainly) every university in the country. (One need not be a legal expert to realize that surreptitiously broadcasting someone else's sexual encounter on the Internet is wrong.) Indeed, Clementi's roommate was indicted by a grand jury in April on 15 criminal counts for his actions. But universities' rush to get out in front of this issue is leading to the enactment of policies that are sloppily drafted and raise serious free speech issues.

For example, Montclair State University recently amended the definition of "harassment" in its University Code of Conduct (.pdf) to include a prohibition on bullying. However, bullying is not defined in any way. Rather, the definition of harassment was merely expanded (section (d), with boldface added, is the new language) to read:

A student will be found responsible for harassment if he or she engages in severe or pervasive and objectively offensive conduct that a) involves intimidation or threats to another person's safety, rights of personal privacy and property, academic pursuits, University employment, or participation in activities sponsored by the University or organizations or groups related to the University, or b) materially obstructs or impairs another person's rights, academic pursuits, employment or participation, or c) creates an intimidating or hostile environment for another person's academic pursuits, employment or participation in the University community, or d) involves bullying, whether it is interpersonal or through third parties, via the Internet or other forms of media.

Now, Montclair State's policy could be a lot worse, because it at least requires that the conduct, in addition to involving "bullying," be severe or pervasive as well as objectively offensive. But to constitute harassment of the sort that is unprotected by the First Amendment (and thus can be prohibited by a public university like Montclair State), harassment must be "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). Unlike the Davis standard, which clearly sets forth the impact that conduct must have on a victim's life to constitute harassment, Montclair State's proscription on severe or pervasive conduct that "involves bullying" provides little guidance as to what might be prohibited beyond that conduct which already meets the legal definition of harassment. The term "bullying" is completely undefined and could mean almost anything.

Montclair State's addition of this vague language to its harassment policy is a good example of how a hasty response to the new pressure to address bullying can infringe on students' expressive rights. Unfortunately, we expect to see many more of these policies in the coming months. For another example, look at our coverage of draft policy language at UMass Amherst that would ban, as bullying, speech or expression that causes "emotional harm" to its intended victim.

If you believe that your college's or university's policy should be a Speech Code of the Month, please email speechcodes@thefire.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE's Campus Freedom Network, a network of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.