Universities on the Cusp of a Better Speech Code Rating, Part 1: Shawnee State University

At the end of every September, FIRE finalizes the data for our annual speech code report, which is released later in the fall or winter. So if a university has a “red light” rating on September 30, it will fall into the red light category for the forthcoming speech code report, and any policy changes that happen after that date will affect its rating in the following year’s report. Since we love good free-speech news at FIRE, we have decided to post a series here on The Torch featuring a handful of red light schools that are just one policy away from earning a “yellow light” rating in the hopes that they will decide to make the necessary revisions before the end of our reporting period. The first university in this category, and the subject of this first installment in our series, is Shawnee State University in Ohio. Shawnee State’s policy on Sexual Harassment and Sexual Violence (PDF) contains a long list of “examples of sexual misconduct” that include many instances of constitutionally protected speech. Prohibited conduct includes, for example, “telling sexual or dirty jokes” as well as “displaying or distributing sexually explicit drawings, pictures, or written materials.”  While these types of conduct could theoretically be part of a pattern of conduct that rises to the level of unprotected harassment, they categorically are not—taken alone—“examples of sexual misconduct.” The suggestion that students can be punished simply for telling a dirty joke or for engaging in sexually explicit expression has a serious chilling effect on student speech.  Most universities, including Shawnee State, offer courses that may naturally lead to frank discussions of sex and sexuality. Beyond that, students and student groups may wish to express their opinions on issues of gender and sexuality in controversial and attention-grabbing ways. (Just look at the topics of conversation at Yale’s 2013 “Sex Weekend”). Speech, both inside and outside of class, will be chilled if students reasonably fear punishment for speech or expression that someone deems “dirty” or too “sexually explicit.” Thankfully, the U.S. Supreme Court has set forth a very clear definition of discriminatory harassment in the educational setting, a definition carefully tailored to balance universities’ twin obligations to protect free speech and prevent harassment. In Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), the Supreme Court defined peer harassment in the educational context as conduct that is:    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. When a university prohibits only conduct rising to this level, it ensures that students can freely express their opinions on issues of gender and sexuality without fear of punishment. By contrast, Shawnee State’s policy (in addition to defining harassment more broadly than Davis) states that certain forms of expression are prohibited across the board.  Fortunately, the solution is simple. The university can either remove the confusing list of examples from its policy (the simplest and best solution) or, at the very least, insert language clearly tying the examples to an appropriate definition of harassment. Many other universities have revised policies like this one, and we hope that Shawnee State will follow suit and improve its red light rating.