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.