Spotlight on Speech Codes at University of Minnesota-Twin Cities

Given the uproar over the University of Minnesota - Twin Cities' (U of M's) plans to implement a re-education program for future teachers, which has generated quite a bit of media coverage in recent days, FIRE will be shining the spotlight heavily on U of M. We have already sent a letter to U of M President Robert H. Bruininks laying out our many concerns about the program. Today, I would like to examine U of M's speech codes and explain why FIRE has given the university a red-light rating in Spotlight, our comprehensive database on university speech codes.

The University of Minnesota-Twin Cities maintains a number of policies that clearly and substantially restrict freedom of speech, earning the school a red light. At a large public university such as U of M, which is legally bound by the guarantees of the First Amendment, this is a regrettable state of affairs, as these restrictions are unconstitutional. Let's review the problematic policies in turn.

First, U of M's Office of Equal Opportunity & Affirmative Action maintains a policy ("Discrimination: Overview and Definitions") that defines harassment on the basis of race and color as follows:

Harassment on the basis of race or color is a violation if the conduct creates an intimidating, hostile, or offensive work or educational environment, or interferes with an individual's work or educational performance. Racial slurs or jokes and verbal or physical conduct motivated by an individual's race or color are unacceptable in the University educational and work community.

Similarly, the Discrimination policy defines harassment on the basis of sexual orientation as follows:

Harassment on the basis of sexual orientation is a violation if the conduct creates an intimidating, hostile, or offensive work or educational environment, or interferes with an individual's work or educational performance. Slurs, jokes, and verbal or physical conduct motivated by an individual's sexual orientation is unacceptable in the University educational and work environment.

Both of these definitions explicitly label instances of protected speech as examples of prohibited harassment. "Racial slurs or jokes," while abhorrent to many, are protected by the Constitution unless they rise to the level of "fighting words"—words that "tend to incite an immediate breach of the peace." Given that this is an extremely narrow doctrine which requires face-to-face confrontation and is rarely met, the ban on "[r]acial slurs or jokes" covers much protected speech. The same goes for "[s]lurs" and "jokes" which are "motivated by an individual's sexual orientation," as covered in the second definition. The "fighting words" doctrine is also of questionable relevance, as we've covered previously on The Torch, making any reliance on the doctrine outdated and likely untenable. To be sure, U of M may prohibit slurs and jokes if they are part of a larger pattern of conduct that rises to the level of actual harassment. But to suggest that this type of expression, standing alone, constitutes actionable harassment misrepresents the law and shortchanges students' speech rights.

A public institution of higher learning may not institute an outright ban on jokes simply because a few sensitive individuals may claim offense. Rather than bow to political correctness, U of M ought to heed the lessons of the Supreme Court's decision in Hustler Magazine v. Falwell, 485 U.S. 46 (1988), in which the Court upheld the right of Hustler to publish a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his own mother in an outhouse. If such outlandishly offensive and ridiculing satire is protected under the First Amendment, then certainly jokes relating to race, color, and sexual orientation are also protected. To hold otherwise in stated university policy is to place an impermissible chilling effect on campus dialogue, as students will be uncertain whether satirical humor and other speech will subject them to punishment due to the objections of a sensitive listener.

Perhaps even worse, these two definitions encompass any "verbal...conduct motivated by" an individual's race or color and sexual orientation, respectively. Such a broad restriction threatens much clearly protected, and indeed perfectly innocuous and tame, speech. It is not difficult to think of some examples: voicing one's opinion on matters of affirmative action, perhaps, or on the political viability of legalizing same-sex marriage. Such speech, though fully entitled to constitutional protection, is punishable under U of M's problematic definitions of harassment.

It is worth noting that the problems presented by the Discrimination policy are made worse by the university's maintaining a policy on "Threatening, Harassing, or Assaultive Conduct" which bans "engaging in conduct that endangers or threatens to endanger the health, safety, or welfare of another person, including, but not limited to, threatening, harassing, or assaultive behavior." This policy does not define "harassing" speech, however, instead leaving the term open-ended. As a result, the constitutionally infirm definitions of harassment contained in the Discrimination policy are all the more a threat to protected expression on campus, as administrators will presumably refer back to these flawed definitions to determine whether or not this final ban is applicable in a given instance.

Second, U of M's Housing & Residential Life Guidebook contains a policy on "Disorderly Conduct" that prohibits, in pertinent part:

[U]se of obscene, or abusive language, or engaging in conduct that would reasonably tend to cause alarm, anger, fear, or resentment in others;

...

Hate/Bias Crimes that use language, signs, symbols or threats that would reasonably tend to arouse, alarm, anger, fear or resentment in others or would endanger the health safety and welfare of a member(s) of the University community.

By banning expression which merely tends to cause "alarm, anger, fear, or resentment in others," this policy threatens protected speech. Indeed, it reminds one of the Supreme Court's timeless declaration in Terminiello v. Chicago, 337 U.S. 1 (1949) that free speech "may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." The Disorderly Conduct policy essentially turns this declaration on its head, preferring instead to shield students from speech that they may deem unwanted, offensive, or disagreeable.

Third, U of M has a "Bias-Related Incident Response" policy that calls on students to report incidents of "bias, discrimination or hostility." The policy defines a "bias incident" as follows:

Expressions of disrespectful bias, hate, harassment or hostility against an individual or group because of the individual or group's actual or perceived race, color, creed, religion, national origin, gender, gender identification, age, marital status, disability, public assistance status, veteran status and/or sexual orientation can be forms of discrimination.  Expressions vary, and can be in the form of language, words, signs, symbols, threats, or actions that could potentially cause alarm, anger, fear, or resentment in others, or that endanger the health, safety, and welfare of a member(s) of the University community, even when presented as a joke.

This policy too covers much protected speech and uses language similar to that found in the Disorderly Conduct policy. In particular, the ban on "disrespectful bias, hate, harassment or hostility" provides FIRE with yet another opportunity to remind a university that there is no First Amendment exception for bias or hate speech. The Bias-Related Incident Response policy attempts to overcome this infirmity with a savings clause:

The conduct underlying some bias incidents might be protected speech, but still violate the University of Minnesota's commitment to civility and diversity. Constitutional rights will continue to be protected, but University staff will also exercise their right to speak and engage in educational dialogue.

However, as is the case with most purported savings clauses added to speech codes, this provision is likely to leave students uncertain of their expressive rights on campus. As our recently issued Correcting Common Mistakes in Campus Speech Policies explains, savings clauses such as this one "only worsen existing infirmities in university speech codes by injecting further confusion and uncertainty regarding which speech is and is not subject to punishment on campus." In this case, how is a U of M student to determine whether particular speech "might" be constitutionally protected but still violate the university's notions of "civility and diversity?" By leaving this question unanswered, this policy too fails to uphold U of M students' freedom of expression on campus.

It is commendable that U of M's policy allows for university staff to "speak and engage in educational dialogue." That's a form of "more speech" and a good way to address disagreements without resorting to punishing and chilling speech. Nevertheless, by stating that the right to engage in protected speech may sometimes be subverted by the university's commitment to civility, the U of M policy recalls the 2007 decision of College Republicans at San Fransisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007), in which a federal court struck down a university "civility" policy as unconstitutional on its face. As made clear by that decision, U of M may not cite to its commitment to civility and diversity as a reason to punish protected speech.

So long as the policies discussed above remain in place, the University of Minnesota - Twin Cities will be in violation of its legal obligations under the First Amendment and will continue to receive a red-light rating in FIRE's Spotlight database. In addition to heeding the criticism it is rightly facing for its teacher reeducation program, the university would be well advised to scrap each of these policies immediately.