Why the Claremont University Consortium Should Revise Its Policy on 'Bias Related Incidents'

Last week, I wrote about an exchange between FIRE and Washington State University (WSU) that led WSU to promise to make changes to its "Bias Hotline" policy that would bring the policy into compliance with the First Amendment. I wrote that a revision along such lines would be a great benefit to students on WSU's campus, and that more universities should do the same in light of the abuses of bias incident policies that we see each year. (Indeed, in our 2009 Spotlight report on speech codes, we highlighted these policies and their proclivity for being used to restrict constitutionally protected expression.)

In my discussion of WSU's Bias Hotline policy, I highlighted some of the abuses FIRE has seen of such policies, all at the Claremont University Consortium (CUC). Suffice it to say that you could draw all of the examples needed to illustrate the problems with bias incident policies solely from the cases we have witnessed at the CUC's five undergraduate campuses—Pomona College, Scripps College, Harvey Mudd College, Claremont McKenna College, and Pitzer College.

Recently, Robert A. Walton, Chief Executive Officer of the CUC, wrote us earlier this month in response to a letter from FIRE. In our letter, we highlighted the constitutional flaws found in a policy shared by the five colleges, called The Claremont Colleges Communication Protocol for Bias Related Incidents (linked from Scripps College's website), which we had named as our Speech Code of the Month for April 2010. The policy was summarized as follows by Samantha Harris in our Speech Code of the Month feature:

The protocol contains all sorts of directions for what must happen in the event of a bias related incident on any of the five campuses, including communication among administrators at all five schools and, frequently, dissemination of notice of the incident to the entire student body.

The protocol defines "bias related incidents" as "expressions of hostility against another person (or group) because of that person's (or group's) race, color, religion, ancestry, age, national origin, disability, gender or sexual orientation, or because the perpetrator perceives that the other person (or group) has one or more of those characteristics." The protocol adds that "the term 'bias related incident' is limited to conduct that violates one or more of the Claremont colleges' disciplinary codes and which is not protected by the First Amendment of the United States Constitution or by analogous provisions of state law." This is confusingly contradictory, since most "expressions of hostility" are entirely protected by the First Amendment unless the expression rises to the level of, for example, harassment or true threats.

Our letter to CUC highlighted the overbreadth and vagueness problems presented by this policy, as well as the chilling effect it creates at the Claremont Colleges. We discussed the fact that under the policy, students on all five Claremont campuses are left guessing about the extent of their free speech rights, that their rights are at the mercy of the most hypersensitive members of the campus community, and that students appear to be denied the right to engage in even core protected speech such as satire and parody and political expression.

In his response letter, Walton acknowledged our concerns. His response in its entirety is as follows:

This is to acknowledge your letter dated July 2, 2010 and your expressions of concern about the bias related incident policy of members of The Claremont Colleges.

The Claremont University Consortium as a custom and practice regularly reviews existing policies and procedures, and I will include your comments in the materials used during the review process at the appropriate time.

It's not the immediate change that students at CUC schools deserve under the First Amendment and California's "Leonard Law" (which makes the First Amendment applicable at non-sectarian private colleges in the state), but reason for hope nonetheless.

I sincerely hope the administration at CUC reviews its policy and revises it in accordance with FIRE's First Amendment analysis. By e-mailing students on all five of the CUC's undergraduate campuses for "incidents" ranging from "Hilary is a foxy lesbian" to an advertisement for a "Wild Wild West" party to a penis drawn in chalk to an advertisement for a "White Party," CUC's administration has made campus-wide incidents out of almost nothing and, along the way, has put its students' free speech rights in doubt. These overreactions to perfectly protected (except for the chalk vandalism) and, frankly, rather tame expression have undoubtedly chilled student speech at the Claremont Colleges. The students on these campuses deserve better, and I hope our correspondence with Walton goes some way towards accomplishing the necessary change.