Suspension over profanity-laced video highlights unconstitutional policy at Ferris State

By now, you’ve probably heard of Ferris State University professor Barry Mehler, whose tongue-in-cheek introductory video to students — which jokes that grades are predetermined by God and calls students “vectors of disease” — has been viewed on YouTube over half a million times. (Not bad for a syllabus week introduction!) But you may not have seen the policy Ferris State suspended him for violating: its Employee and Student Dignity policy. 

Mehler sued the university in January, seeking reinstatement and alleging the university’s policy on its face and as used to justify his suspension violate the First Amendment. We agree, and are naming it FIRE’s Speech Code of the Month for February. 

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Ferris State’s Employee and Student Dignity policy explains that the university “expects all students and employees to conduct themselves with dignity and respect” for others, and that it is each individual’s responsibility “to behave in a civil manner and to make responsible choices about the manner in which they conduct themselves.” 

These sound like worthwhile goals. Of course we should want people to be nice to one another. 

But how do administrators define dignified or respectful conduct, or what it means to make “responsible choices?” The policy doesn’t elaborate on these operative terms, but its meaning is clear now: If you’re discovered cursing in a viral video, and administrators think people might be outraged, you’re in trouble. (Even if administrators previously praised the approach, as Ferris State did!)

Speech can’t be limited by the government merely because it is profane. And as we explained in our letter to Ferris State: 

[T]he context of the video makes clear that Mehler was not using profane language to actually insult his students or others, but rather as part of a lighthearted performance to boost the entertainment value of a syllabus day lecture that might otherwise put students to sleep. To be sure, some may find Mehler’s style offensive or obnoxious, but that is not enough to render his speech unprotected. A diverse faculty body is bound to result in diverse teaching styles, and no instructor has an obligation to conform to a prim and proper method of teaching.

When rating regulations on expression in our Spotlight database, we assign a “yellow light” rating to policies that are so vague they invite administrative abuse. Since a “red light” rating, reserved for policies that pose clear restrictions no matter how they’re applied, is considered our worst rating, some have the mistaken belief that the yellow light rating means a policy sufficiently protects free expression. But Mehler’s suspension under a yellow light policy demonstrates that policies with this rating, when applied abusively, can be just as problematic as those with red light ratings. 

Ferris State must reinstate Mehler and revise its Employee and Student Dignity policy.

Indeed, confronted with a story about one of their professors going viral, having this policy on the books made it all too easy for Ferris State’s administration to silence him. And they did so in an arbitrary way: When essentially the same speech was seen as a provocative way to get students’ attention, the college praised Mehler; but when out-of-context portions of it went viral and became a threat to Ferris State’s public relations goals, they deployed the Employee and Student Dignity policy. Not very “dignified,” if you ask us.

A staggering 326 institutions rated in our Spotlight database earn an overall yellow light rating for maintaining at least one such policy, meaning that all it takes to be punished or suspended from hundreds of colleges nationwide is making a profane video that goes viral and is viewed out of context. (The percentage of yellow light institutions has steadily risen over the past decade; check out whether a school you care about makes the yellow light list in our latest report.)

Students and professors shouldn’t have to worry that expressing themselves — for example, using humor to capture students’ attention during the notoriously boring “syllabus week” — could threaten their futures. Ferris State must reinstate Mehler and revise its Employee and Student Dignity policy.

The rest of the yellow light schools in the country would be well advised to revise their policies before controversy strikes and they’re hit with a lawsuit. If you’re a student or faculty member at a yellow light school, or an administrator wondering why we’ve flagged one of your policies, FIRE’s Policy Reform team is here to help.