The State of Free Speech on Campus: Dartmouth College

Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America's top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Dartmouth College, only the second institution in our series to receive a green-light rating.

A green-light rating means that FIRE has found no policies that seriously imperil student speech on campus. However, a green-light rating does not imply perfection; there may still be room for improvement even at a university whose policies do not pose a serious threat to free speech. In fact, there is some room for improvement in Dartmouth's policies, and we will explain today what the university could do to even better protect free speech on campus. Moreover, it is important to remember that FIRE's ratings are based on the extent to which a school's written policies protect free speech; a school's Spotlight rating does not speak to that school's support for free speech in its practices, which FIRE deals with separately through our Individual Rights Defense Program. Indeed, over the years there have been a number of concerning incidents at Dartmouth (of most recent concern: the Dartmouth Board of Trustees' disturbing ouster of alumni trustee and free-speech supporter Todd Zywicki).

As with all private universities, which are not bound by the First Amendment, we begin by explaining why Dartmouth is even required to uphold the right to free speech on campus. The answer can be found in the commitment Dartmouth makes to its students in its Freedom of Expression and Dissent policy:

Freedom of expression and dissent is protected by College regulations. Dartmouth College prizes and defends the right of free speech and the freedom of the individual to make his or her own disclosures, while at the same time recognizing that such freedom exists in the context of the law and in responsibility for one's actions. The exercise of these rights must not deny the same rights to any other individual. The College therefore both fosters and protects the rights of individuals to express dissent.

The college also reiterates its commitment to free speech rights in its information technology policy, stating that

Freedom of expression and an open environment within which to pursue scholarly inquiry and to share information are encouraged, supported, and protected at Dartmouth. ... Censorship is not compatible with the goals of Dartmouth.

Certainly, anyone reading these strong statements would believe that, as a member of the Dartmouth community, they were entitled to the same free speech rights as they would be at a public university. Fortunately, unlike so many other private universities, Dartmouth actually respects these commitments in the policies it maintains regarding speech and expression on campus, as a thorough review of Dartmouth's policies fails to reveal any instances of written policies contradicting Dartmouth's promises of free expression.

Now, we turn to those existing policies and explore how they might be improved to even better protect free speech at Dartmouth.

First up is the university's policy on sexual harassment. The policy—which applies to students as well as to employees—tracks the language of the Equal Employment Opportunity Commission (EEOC) on sexual harassment, providing that sexual harassment is sexually oriented conduct that "has the purpose or effect of unreasonably interfering with an individual's work or academic performance by creating an intimidating, hostile, or offensive working or educational environment." While Dartmouth has obviously made an effort to track the applicable standards of sexual harassment law with this policy, the standards which appropriately govern sexual harassment in the workplace are inappropriate in the educational context, where speech should be far more unfettered. For this reason, having a sexual harassment policy that applies to students and employees alike is insufficiently protective of student speech in the academic context. What this policy is missing, to properly adapt it to the educational context, is a requirement that the conduct be severe, pervasive, and objectively offensive—the standard for student-on-student harassment set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).        

The other Dartmouth policy that would benefit from revision is found in Standard II of the university's student Standards of Conduct. That policy provides that "Harassment is defined as abusive behavior or conduct that is targeted at an individual or group and is ordinarily repeated." While it is entirely possible—perhaps even likely—that this policy is intended to apply only to the type of severe and pervasive conduct that constitutes harassment in the educational context, the wording of the policy is vague enough that it could theoretically be used to apply to speech that would otherwise be protected by the First Amendment. The term "abusive," while it does conjure more serious conduct than other frequently used terms such as "offensive" or "hurtful," is not defined by the policy and thus could be left to the discretion of the listener. And what a particularly sensitive person might find "abusive" might not rise to the level of severe, pervasive, and objectively offensive conduct that the university may legitimately prohibit. This policy, like the sexual harassment policy, should also more clearly reference the standard for harassment in the educational context.

While FIRE does not believe that these policies seriously imperil speech on Dartmouth's campus, we believe that all universities—even those with green-light ratings—should be constantly striving to come closer to the idea of a university as a true marketplace of ideas. We hope that Dartmouth will take seriously the recommendations contained here and will strive to uphold in practice the right to free speech enshrined in its policies.

Stay tuned next week for information on the state of free speech at the University of Chicago.