William & Mary Closes In on a "Green Light," but One Dangerous Policy Remains

There is excellent news this week out of The College of William & Mary. The student newspaper The Informer reports that the W&M administration has revised several of the university's speech codes, thanks to pressure from free speech advocates including former FIRE intern Braum Katz, a W&M senior. In particular, the administration has eliminated a ban on anonymous postings and has revised an internet usage policy that prohibited any "unsolicited messages which contain profane language or which pander to bigotry, sexism or other forms of discrimination"—a policy that, due to its vague and broad wording, could easily have been used to suppress core political expression.

Almost two years ago, William & Mary also revised an unconstitutional "bias incident" policy, bringing that policy in line with the college's legal and moral obligations to protect student speech rights. All of these changes make William & Mary a much safer place for student expression, and the administration deserves a great deal of credit for making all of these important revisions. FIRE would love to recognize William & Mary's efforts by giving the school a favorable, "green light" rating, but the college unfortunately still maintains one policy that seriously threatens student expression. We cannot, in good conscience, remove W&M's "red light" rating until this policy is altered. It is our hope that by drawing it to the administration's attention, the necessary changes can be made and the university can earn itself a green light.

Specifically, the college's Equal Opportunity Office maintains a page on "discrimination" that explicitly includes protected expression as examples of harassment. The list of harassing behaviors includes "An instructor makes a derogatory statement in front of the class about a person's ethnicity"; "One group of students consistently uses derogatory language about another group and openly exhibits ongoing hostility to the other group's members"; and "A member of the community hangs signs or pictures that are insulting, demeaning or threatening to a particular racial, ethnic or gender group." As W&M administrators know—since they use the proper definition elsewhere—harassment in the educational context must be conduct so severe, pervasive, and objectively offensive that it actually interferes with someone's ability to obtain his or her education. While "insulting" signs or pictures may be offensive, they typically will not constitute harassment unless they are part of a pattern of conduct that rises to the level of severity just described. And over the years, FIRE has seen numerous students punished harshly simply for posting constitutionally protected materials that offended others on campus (the cases of Tim Garneau at UNH, Justin Park at Johns Hopkins, and Steve Hinkle at Cal Poly come immediately to mind).

W&M could very easily make the necessary revisions to this policy. The actual definition of harassment provided is not problematic; it is the list of examples, which contradicts the definition by including instances of protected speech, that is the problem. By simply doing away with the examples list, W&M could eliminate the problems with its policy, and we urge them to do so.