Texas State's 'Common Experience' on First Amendment Should Begin With Revision of Speech Codes

We recently took note of an interview featuring Texas State University-San Marcos (TSU) President Denise Trauth in TSU's The University Star, in which President Trauth spoke at length about her experiences as an undergraduate reporter at her college's campus newspaper, as a high school journalism teacher, and as features editor for The Daily Iowan at the University of Iowa.

But what really caught our attention was her answer to the question, "Does the Common Experience theme this year, the First Amendment, have a special significance to you?" Trauth responded:

Absolutely. I did years and years doing research in this very area, so it's more than just a component of the general field I work in—it's my own research area. And it's also the research area my husband was in. Not only did we both [work] on the newspaper together, but we both had the same dissertation adviser and we both worked in law and policy First Amendment areas and taught in that area. This is something that has been near and dear to my heart.

A quick perusal of TSU's website reveals that the theme for the "Common Experience" at TSU this academic year is indeed the First Amendment:

The Common Experience is a year-long initiative of Texas State University-San Marcos designed to cultivate a common intellectual conversation across the campus, to enhance student participation in the intellectual life of the campus, and to foster a sense of community across our entire campus and extended community.

The Common Experience theme for 2011-2012 is "Freedoms: The First Amendment," an interdisciplinary theme that affects all departments, offices, and organizations at Texas State—thus allowing for a cross-disciplinary, cross-campus, and multi-organizational conversation. The First Amendment protects the basic freedoms of religion, expression (speech), press, assembly, and petition. Discussion and examination of the First Amendment will allow students, faculty, and staff to understand the Founder[s'] intentions regarding basic freedoms.

As far as FIRE is concerned, if a school is going to have such an initiative, this is obviously a great topic. We're also pleased that a leader with the type of First Amendment background that President Trauth possesses is there to head the initiative.

However, if TSU and President Trauth are serious about "cultivat[ing] a common intellectual conversation across the campus" and helping students to "understand the Founder[s'] intentions regarding basic freedoms," they should begin by ensuring that TSU's own policies do not compromise students' freedom of speech. Despite being morally and legally bound by the First Amendment as a public university, TSU currently maintains three "yellow light" policies that deprive students of their full First Amendment rights. Any real success for free speech at TSU will have to include a revision of these policies to cure their constitutional defects.

In fact, we wrote to TSU back in August regarding these policies, urging President Trauth to follow through on reviewing and revising these policies. Our letter, sent August 1, followed upon a mass mailing we had sent in December 2010 to public colleges and universities across the nation, informing them that in light of important legal developments during 2010, the case law regarding campus speech codes was clearer than ever, and that institutional leaders and officials risked personal liability for monetary damages if they continued to enact and maintain unconstitutional policies in contravention of this case law.

Following receipt of our December 2010 mailing, President Trauth wrote back to us on January 28, assuring us that TSU would "give these concerns our prompt attention."

But as our August 1 letter explained, TSU is still subjecting itself to a possible legal challenge by maintaining those three unconstitutional policies. For example, TSU's Department of Housing and Residential Life policy on "Hazing and Harassment" (PDF) states: "It is against Texas State policy to harass or haze anyone. Harassment involves behavior towards a person that is unwanted." (Emphasis added.) As we explained in our letter, this rather vague and incomplete definition of harassment falls well short of the Supreme Court's established standard for student-on-student (or peer) harassment, covers constitutionally protected speech, and fails to properly apprise students of their expressive rights at TSU:

TSU's policy covers an immense amount of constitutionally protected speech, and will almost certainly chill speech on campus. Under this policy, saying "good morning" to a person who does not wish to be spoken to will constitute punishable harassment, as will expressing a political message to an unreceptive fellow student. Clearly such restrictions are not consistent with the First Amendment. Considering that virtually any benign day-to-day conversation could constitute punishable harassment in TSU university housing, it is reasonable to assume that students will self-censor rather than engage in any speech that could be deemed even slightly controversial or offensive. Such a result is untenable and unjust.

If TSU wishes to uphold students' free speech rights—and instill in them a true appreciation for, and understanding of, the First Amendment-TSU would be well advised to rescind this policy and replace it with a definition of peer harassment that comports with the Supreme Court's controlling precedent.

Additionally, TSU maintains a policy on "Appropriate Use of Information Resources" (PDF) that prohibits students from "using the university's information resources to affect the result of a local, state, or national election or to achieve any other political purpose." (Emphasis added.) The same policy states that communications via university information resources "should reflect high ethical standards, mutual respect, and civility." With respect to the first provision, our letter argued:

Political speech, being one of the primary beneficiaries of the First Amendment, must be accorded the highest level of protection....Students at a public university such as TSU must have robust speech rights to discuss, debate, and explore a wide range of issues, so that they can learn and grow. As such, it is inconceivable that TSU would deny its students and faculty the right to engage in any political speech using the university's information resources.

Regarding the second part of the policy, we wrote:

[N]o matter how well-intentioned, the requirement that users of TSU's information resources exhibit "mutual respect and civility" contributes to the policy's overbreadth and infringes on the First Amendment rights of TSU students. As odious as speech lacking in "civility" or "respect" may be to some, it is largely protected by the First Amendment.

Quite so. These two defects are significant, and TSU must address both of them if it wishes to bring its policy on Appropriate Use of Information Resources into compliance with the First Amendment. Fortunately, the ways to properly rectify this policy, as well as the harassment policy and the third and final speech code, are laid out in our August 1 letter.

Until it takes these measures, TSU's Common Experience initiative for this academic year will, unfortunately, ring a little hollow. I urge President Trauth and the TSU administration to take the necessary steps to demonstrate to students, faculty, and staff that the campus community's appreciation of the First Amendment is reflected in TSU policy. That would truly be a Common Experience worth sharing.