Speech Harassment
Over at the Vermont Tiger web site, University of Vermont economics professor Art Woolf had some kind words for the News Guy’s Sept 14 post about possible threats to free speech in UVM’s proposed (and subsequently altered) “solicitations policy” along with an interesting suggestion.
“UVM has some other free speech issues,” Woolf noted, citing a group called the Foundation for Individual Rights in Education (FIRE) which on its green-yellow-red scale rates UVM a yellow, meaning there are some threats to free speech on campus.
But that’s better, from FIRE’s perspective, than Bennington and Middlebury Colleges, both of whom are rated red. Middlebury, in fact, won the organization’s “speech code of the month” rank last May because of its policy on political demonstrations.
As FIRE’s officials acknowledge, no one has lately complained about not being able to speak his or her piece at UVM, Middlebury, or Bennington (the only Vermont schools FIRE deals with). FIRE presents no tangible cases of alleged free speech repression at any of the Vermont campuses.
Neither, it seems, does anybody else. At the Vermont chapter of the American Civil Liberties Union, director Allen Gilbert said that when an anti-harassment law applying to higher education was passed in 2004, “we worried that someday there would be a case that would challenge the constitutionality were the law applied in certain ways.”
But apparently it has not been so applied, at least not so that anybody has complained.
Will Creeley, FIRE’s Director of Legal and Public Advocacy, acknowledged that the ratings are based on “the language in (a college’s) policy, not any application of the policy… (because ) the mere existence of a flawed policy chills speech on campus.”
As assertions go, this can’t be confirmed. But then it can’t be refuted, either, and it seems plausible.
Take the foundation of that May “award” FIRE bestowed on Middlebury. In its policy governing student demonstrations, the College asserts that, “student organizations bear full responsibility for arranging and financing any Department of Public Safety provisions that may be necessary in connection with controversial speakers.”
FIRE claims that this policy “allows fellow students to exercise a ‘heckler’s veto’ over unpopular speech by threatening disruptive protests, thus requiring additional security and, accordingly, additional—and possibly prohibitive—costs.”
On its face, that objection seems reasonable (and Middlebury officials chose not to respond). Suppose a left-wing student organization plans a demonstration. If the conservatives on campus make it known that they intend to be out in force, holding up their own signs and chanting their own slogans, the leftist group would have to put up the money to pay for extra police protection, money it probably does not have. So the demonstration gets called off.
There are also potential problems with the “harassment” policies of the colleges, designed to protect students against racial, ethnic, or gender-based slurs.
The UVM policy defines harassment as any behavior, including “verbal” behavior (meaning speech), “that has the purpose or effect of objectively and substantially undermining and detracting from or interfering with a student’s educational performance or access to school resources or creating an objectively intimidating, hostile, or offensive environment.”
That leaves a lot open to interpretation, even though the last eight words are taken directly from statute and from a U.S. Supreme Court decision. But who “objectively” determines which spoken or written words might create “intimidating, hostile, or offensive environment.”
It isn’t that FIRE objects to all college rules. Free speech does not confer the power to hold a loud demonstration all night, or outside the exam room. Colleges, Creeley said, may impose “reasonable time, place, and manner restrictions.” And professors can largely set the speech rules for their own classes.
Restrictions against racial, ethnic, and sexual harassment are also broadly acceptable – even desirable – when it is clear that they govern only person-on-person contact. A university may discipline a student who walks up to another and insults him because of his race, abuses her for being female, or maliciously teases him for being gay.
But what about speech that might insult some students even if it is not directed at them? What about speech that offends many students simply because it expresses views the find abhorrent?
According to FIRE, some colleges are clamping down on that kind of speech, too: at Bucknell University in Pennsylvania, where authorities would not allow conservative students to protest affirmative action or President Obama’s economic policies; at Indiana University-Purdue University Indianapolis (IUPUI) where a student employee “was found guilty of racial harassment for merely reading the book Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan during his work breaks.”
“When you give administrators wide berth to punish speech merely because it is disagreeable or uncivil, that discretion will be abused,” Creeley said. “It doesn’t matter if it hasn’t happened yet.”
There have been no reports of similar occurrences in Vermont. But it isn’t difficult to envision the possibilities. Suppose that, in class, a student says that the political power of Jewish organizations restrains pubic discussion of the Mideast, or that affirmative action programs lead to accepting unqualified minority students, or that the Abenaki should not get full tribal recognition because that might lead to gambling casinos in Vermont.
Reasonable public policy statements all. But with today’s sometimes supercharged sensitivity, a Jewish, an African-American, or an Abenaki student might complain to the professor that he or she was so offended that his or her “education performance” was undermined, and that the statements established an “intimidating, hostile, or offensive environment.”
The professor’s response to the offended student should be: “You’re offended? Then be offended. Living in a free society almost guarantees that we’re all going to be offended from time to time. Deal with it” But some professors, especially those still un-tenured, might wonder whether higher-ups would support this response.
That doesn’t happen, said Tom Gustafson, UVM’s Vice President for Student and Campus Life. The complaints that come to university authorities, he said, are more likely to occur when a professor “has been singling out a student who might be African-American, saying, ‘we need the African-American perspective,’ and after awhile the student says, ‘come on, I’m just here as a student.’”
But Creeley argued that the harassment rules can stifle student expression before it is expressed.
“When students are left to guess whether their speech is running afoul (of the rules) it’s rational for them to self-censor rather than risk punishment,” he said.
In the view of some students and faculty, the real “harassment” comes in the form of continual rule changes that seem designed to deter free expression.
“It’s not so much overt restriction as much as the passage of policies that require one to officially schedule space, indoors and outdoors, for setting up a table, holding a speak-out etc.,” wrote UVM English professor Nancy Welch in an email.
Only a “recognized organization” can schedule space, she said, so if I was part of (an unofficial) faculty group…and we wanted to have a table in the Davis Center or outside the library, we could not.”
The intricate rules and regulations imposed by Vermont’s colleges and universities to enhance civility seem to be breeding as much resentment, and perhaps stifling speech. Not to mention that they present examples of the kind of pretentious, turgid prose that (one assumes) the better teachers in the English Department strive to prevent.
Perhaps the state’s institutions of higher learning would be better off with a short, simple, statement banning overt, one-on-one incivility of all kinds, and then simply depending on the old rule that the best (and perhaps the only Constitutional) remedy for narrow-minded, hateful, and ignorant speech is…more speech.
Tags: FIRE
December 2nd, 2009 at 1:26 pm
Jon:
Thank you for reporting on the free speech issues at UVM — and even more so for wrestling publicly with the thorny question of how an institution whose mission is imbued with free speech values can nevertheless protect students from mistreatment because of their group identity. I’ve been there myself: I was legal director of an institute that was in the forefront of dealing with these issues when campus conflicts gave rise to the first round of “hate speech” codes from the mid-1980s to the mid-1990s. I won’t relive those times here, except to say that this history seems to have been mostly forgotten — and few lessons were learned from it.
The UVM harassment policy, which you excerpted, is actually an almost verbatim restatement of the state statute (16 V.S.A. §119(a)(26)) which UVM is required by law to implement. The only variance between them is that the UVM policy does not include “gender identity” among the protected classes. This is worth mentioning because it isn’t fair to saddle the UVM administration with this confused, wrongheaded, and clearly unconstitutional monstrosity.
As you noted, some of the language in UVM’s policy defining “harassment” can be found in the U.S. Supreme Court’s 1999 decision in Davis v. Monroe County Bd. of Education. But it doesn’t accurately restate the much narrower definition of “harassment” in Davis. The Davis standard pretty much tracks the common law of harassment which, among other things, almost always requires a course of conduct — a single incident of verbal abuse is insufficient.
This is just one of the fatal flaws in UVM’s policy — and by extension the state statute, at least as applied to colleges and universities — but there are many others. I mention this one because it is not true, as you stated, that “[a] university may discipline a student who walks up to another and insults him because of his race, abuses her for being female, or maliciously teases him for being gay.” All of these incidents, if perpetrated in a public park or in the streets, would be considered protected speech under prevailing First Amendment standards — and the courts have unanimously held that these standards apply in many campus settings, at least at public universities, which are considered state actors.
There are many other issues wrapped up in campus codes and the problems they are intended to address, but this is already too long as a blog comment so I’ll stop here.