The State of Free Speech on Campus: Rice University

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 Rice University, which FIRE has given a red-light rating for maintaining a policy that clearly and substantially restricts free expression on campus.

Like so many private universities, Rice presents itself as an institution that values individual freedoms. Rice's Student Handbook provides:

One of the University's functions is to provide a forum for the orderly expression and discussion of various points of view. Members of the University Community, acting as individuals and not in the name of the University or any of its component parts, have the right to express their opinions, to picket, and to hold demonstrations or meetings on campus so long as such activities do not violate local, state, or federal laws, and so long as University functions are not disrupted and access to any part of the campus is not impeded. (Emphasis added.)

Yet, like so many universities both public and private, Rice also curtails the very freedoms it claims to value. Rice maintains several policies that to some degree undermine students' right to free expression. However, the university's poor, "red light" rating (as opposed to the less severe "yellow light" classification) is the result of just one particularly egregious policy: the policy on Appropriate Use of Information Technology Resources. As we have discussed in earlier posts, these computer acceptable-use policies are becoming increasingly important as ever more campus communication takes place electronically. While in their early days they may only have regulated a small percentage of the speech that takes place on a university campus, today they reach a tremendous amount of expression.

Rice's policy prohibits, among other things, "[t]ransmitting unsolicited ... material which explicitly or implicitly refers to sexual conduct" and "[t]ransmitting ... unsolicited information that contains profane language or panders to bigotry, sexism, or other forms of prohibited discrimination." By its plain language, this policy would apply to any number of valuable campus communications. For example:

• An e-mail from an LGBT student organization advertising a "coming out" event (which could be perceived by a student receiving the message as "implicitly referring to sexual conduct");
• An e-mail from a conservative student organization advertising a speech by an opponent of illegal immigration (which could be perceived by a student receiving the message as "pandering to bigotry");
• An e-mail from the university's Women's Resource Center inviting students to a discussion on the importance of consent to sexual activity (which could be perceived by a student receiving the message as "explicitly referring to sexual conduct").

While Rice would almost certainly say that it would never enforce the policy against the types of expression described above, the fact is that the policy on its face prohibits the expression. Arbitrary or sporadic enforcement of the policy does not render it legitimate, and in fact merely opens the door to other evils, including double standards and excessive administrative discretion.

The Appropriate Use policy is the greatest threat to free speech on Rice's campus. However, other policies at Rice also threaten free expression to a lesser extent. The Code of Student Conduct prohibits "[i]ntentionally inflicting or attempting to inflict mental or bodily harm on any person," which is overly vague. If "mental harm" means only the type of severe emotional distress that would truly interfere with a student's ability to function at the university, then this policy is acceptable. However, without further definition, the term "mental harm" could also refer to mere upset or hurt feelings. Moreover, the policy contains no objective component (an objective component would require that the conduct cause "mental harm" to a reasonable person), which means that students could be on the hook for expression that upsets the delicate mental balance of a particularly sensitive or already disturbed student.

Finally, Rice's sexual harassment policy is in need of minor revisions. That policy provides that conduct constitutes sexual harassment when

Such conduct is reasonably regarded as offensive and has the purpose or effect of substantially interfering with the educational or work opportunities of students, staff, faculty or colleagues, or creating an intimidating, hostile, or offensive educational or working environment. If it takes place in the teaching context, it must also be persistent, pervasive, and not germane to the subject matter.

Actually, however, it is not only in the teaching context that harassment must be persistent and pervasive; the U.S. Supreme Court has held that all harassment in the educational context (including peer harassment taking place outside of the classroom) must be "severe, pervasive, and objectively offensive." Davis v. Monroe County Bd. of Education, 526 U.S. 629, 633 (1999). Requiring persistence and pervasiveness only in the teaching context implies that lesser conduct will constitute harassment outside of the classroom, threatening the free speech rights of students.

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