Speech Code of the Month: University of Wisconsin System

FIRE announces its Speech Code of the Month for June 2010: The University of Wisconsin (UW) Board of Regents Policy 14-6, the "Racist and Other Discriminatory Conduct Policy."

It is shocking that the UW Board of Regents and many of its member universities still have policies containing language that was ruled unconstitutional by a federal district court in Wisconsin nearly twenty years ago. Although a successful lawsuit against the UW System invalidated the policy prohibiting "discriminatory comments" including "jokes," the same prohibitions are in place today. Obviously, the UW System and all of its institutions must immediately purge this language from all of their policies.

The lawsuit against the UW System stemmed from policies adopted in the late 1980s in response to several racially charged incidents on UW campuses. At that time, the Regents adopted a policy on Racist and Other Discriminatory Conduct. The Regents also approved revisions to UWS 17, the systemwide student conduct code, which were ruled unconstitutional on First Amendment grounds by a federal district court in The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991).

The unconstitutional policy at issue in UWM Post stated:

The university may discipline a student in non-academic matters in the following situations.

. . .

(2)(a) For racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and

2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.

The policy added:

A student would be in violation if:

a. He or she intentionally made demeaning remarks to an individual based on that person's ethnicity, such as name calling, racial slurs, or "jokes"; and

b. His or her purpose in uttering the remarks was to make the educational environment hostile for the person to whom the demeaning remark was addressed.

The district court in UWM Post found the policy facially unconstitutional because it was both overbroad and vague. The court determined the policy to be overbroad because it prohibited language beyond "fighting words" or any other exception to the First Amendment. (There is no "hate speech" exception to the First Amendment.) The court also found the policy to be void for vagueness because it failed to specify if the speech at issue must "actually demean the listener and create an intimidating, hostile or demeaning environment for education" to be actionable, or whether merely intending to do so would suffice. In its opinion, the court observed that "the suppression of speech, even where the speech's content appears to have little value and great costs, amounts to governmental thought control."

Although UWS 17 was amended after the lawsuit, the UW Board of Regents to this day maintains nearly identical language in its Racist and Other Discriminatory Conduct Policy. It directs UW institutions to prohibit racist conduct and suggests that definitions "consistent with the following statement" would be appropriate:

"Racist and other discriminatory conduct" means intentional conduct, either verbal or physical, that explicitly demeans the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry, or age of an individual or individuals, and (1) has the purpose or effect of interfering with the education, university-related work, or other university authorized activity of a university student, employee, official or guest; or (2) creates an intimidating, hostile or demeaning environment for education, university ­related work, or other university authorized activity.

The policy also encourages UW institutions "to provide specific examples of racist and other discriminatory conduct," and suggests:

Such examples might include ... verbal assaults based on ethnicity, such as name calling, racial slurs, or 'jokes' that demean a victim's color, culture or history.

If there is any meaningful distinction between the unconstitutional policy and the policy still maintained today by the Board of Regents, it is not apparent to FIRE.

Not surprisingly, UW institutions have adopted definitions and examples of racist and other discriminatory conduct that are consistent with the Board of Regents policy. At UW-Oshkosh, for example, the institutional policy on racist and discriminatory conduct defines such conduct as the Regents do and provides that "In order to enhance understanding of the conduct prohibited under this policy, the following specific examples of racist and other discriminatory conduct are provided: ... (c) Verbal assaults based on ethnicity, such as name calling, racial slurs, or 'jokes' that demean a victim's color, culture or history."

Similarly, UW-Green Bay's Policy and Procedures Prohibiting Harassment and Discrimination states that "Examples of such prohibited conduct when based upon a legally protected status include, but are not limited to: Verbal abuse or hostile behavior such as insulting, teasing, mocking, degrading, or ridiculing another person or group ...."

The Regents policy on Racist and Other Discriminatory Conduct, and the numerous institutional policies implementing it, display a shocking disregard for both the letter and spirit of the legally binding court decision in UWM Post. For this reason, it is our June 2010 Speech Code of the Month. If you believe that your college's or university's policy should be a Speech Code of the Month, please e-mail 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 loose affiliation 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.