‘Watauga Democrat’ on FIRE’s ‘Spotlight’ Report, Appalachian State’s Speech Codes

Writing for the Watauga Democrat of Boone, North Carolina, Anna Oakes picks up on FIRE's recent speech code report, Spotlight on Speech Codes 2012: The State of Free Speech on Our Nation's Campuses, and highlights the "red light" rating that Appalachian State University (ASU) receives for maintaining an unconstitutional harassment policy. (ASU additionally maintains three "yellow light" policies.)

Oakes' article notes that ASU's red light policy lists, as examples of actionable harassment, such protected speech as "commenting inappropriately on someone's appearance," "sexual innuendoes & comments," and "imposing religious beliefs on others," among others. One can imagine a wide swath of protected humor and parody that would fall under "sexual innuendoes & comments"; likewise, does mere religious proselytizing become punishable at ASU under the ban on "imposing religious beliefs on others"? Other untenable examples in the policy include "stating that people of one sex are inferior to people of the other sex or can't perform their jobs as well as a result of their sex," "letters, notes, phone calls or material of a sexual nature," and "using slang words for people or for groups of people from a particular racial or ethnic group." Again, these prohibitions encompass speech ranging from jokes and comments one may feel comfortable sharing with one's friends to germane academic discussion about differences between the sexes.

Oakes' article also usefully discusses the differences in harassment law between the employment setting and student interactions in college, picking up on a critical point we make frequently:

FIRE said universities too often adopt strict workplace standards that should not apply in a campus setting.

"The standards of the workplace are hardly suitable for a university, which should tolerate a great deal more expression, however offensive, than an office," according to FIRE.

This point has been the subject of FIRE legal scholarship, among many other writings, and cannot be emphasized enough when it comes to protecting students' free speech rights on college campuses.

Of note, Linda Foulsham, director of the Office of Equity, Diversity and Compliance at ASU, is quoted in the article taking issue with our "red light" rating for the harassment policy:

Foulsham said ASU is updating its harassment and discrimination policies to incorporate recent changes in state and federal law but not in response to the red light rating, which she called "unwarranted."

"FIRE has a narrow interpretation of an educational institution's responsibility to prevent and address sexual harassment on campus, which is supported by state and federal law" and the U.S. Department of Education, she added.

Contrary to Foulsham's assertion, however, FIRE's "interpretation" of harassment law is supported by binding Supreme Court precedent, and we certainly do not expect schools to abandon their legal obligation to address and prohibit actual harassment. We ask only that colleges like Appalachian State recognize that prohibiting harassment does not mean prohibiting speech protected by the First Amendment. 

The Supreme Court's lone decision to date on student-on-student hostile environment harassment, Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), tells us that in order for student behavior to be actionable harassment, it must be conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and ... [that] so undermines and detracts from the victims' educational experience, that the victim-students are effectively denied equal access to an institution's resources and opportunities." 

The Davis standard maximally protects student expression while meeting universities' obligations under harassment law, and, as the Supreme Court's only decision to date regarding the substantive standard for student-on-student harassment, must be followed by any educational institution bound by the First Amendment. ASU's policy, on the other hand, does not contain any of the crucial elements of severity, pervasiveness, and objective offense, and defines harassment, in relevant part, as the creation of "an intimidating, hostile or offensive environment," however subjectively defined.

Happily, as the Watauga Democrat article demonstrates, we do have some agreement on this point:

Katy Parker, legal director for the American Civil Liberties Union of North Carolina, said ACLU-NC shares FIRE's concerns about ASU's harassment policy.

"I would say we would have concerns with that language. It just seems overbroad, and it could potentially chill protected free speech," Parker said.

Parker said there are already laws on the books to prosecute perpetrators of harassment and agreed with the statement that university policies should not be as stringent as workplace standards.

Our thanks to the Watauga Democrat for its coverage of our Spotlight report.