ACLU Vice President Dismisses Occidental College’s Claim that Its Censorship Was Consistent with ACLU Policies

By on March 11, 2005

I sent our esteemed friend and Board of Directors member Michael Meyers my post from this morning in which I explain how Occidental College in Los Angeles has publicly stated that its censorship of a student is consistent with ACLU policies. Showing stunning arrogance, the General Counsel of Oxy continued to claim to be acting consistently with ACLU policy despite being told, in no uncertain terms, by the ACLU of Southern California that it was not.

This is what Michael has to say:

Dear Greg:

As you know, I have been on the National ACLU Board for over 23 years, with perfect attendance. I am a vice president of the ACLU and am more than familiar with its policies, especially those in the field of free speech on campus.

Plainly, the ACLU abhors campus speech codes that purport as their purpose or resolve to prohibit protected speech on the questionable premise of shielding individuals from embarrassment or discomfort on the basis of that individual’s race, or gender or other status. For a general overview of ACLU policy in this area you might want to read ACLU (National) Policies 60, 63, 65, 71, and 72a. I would emphasize Policy 72a, adopted unanimously by the ACLU National Board in October, 1990.

In part, Policy 72a makes clear that in the ACLU’s view, “All members of the academic community have the right to hold and to express views that others may find repugnant, offensive, or emotionally distressing…” whether such expression takes the form of public or private discourse on campus. Moreover, Policy 72a makes the distinction between protected free speech and “conduct” (which may involve words or expression) that may be a proper basis for legal prohibition—conduct such as criminal harassment. In this connection, Policy 72a also cautions against campus disciplinary codes that seek to prohibit protected speech while using “harassment” as a ruse for prohibiting free speech. Policy 72a is a statement of assurance that the ACLU “will continue to oppose and challenge disciplinary codes that reach beyond permissible boundaries into the realm of protected speech, even when those codes are directed at the problem of bias on campus.”

There ought to be no confusion as to the ACLU’s strong commitment to free speech or about its recognition that there are circumstances when actual crimes or misconduct may occur which involve words. Policy 72a makes this distinction plain: “This policy does not prohibit colleges and universities from enacting disciplinary codes aimed at restricting acts of harassment, intimidation and invasion of privacy. The fact that words may be used in connection with otherwise actionable conduct does not immunize such conduct from appropriate regulation (For example, intimidating telephone calls, threats of attack, extortion and blackmail are unprotected forms of CONDUCT which include an element of verbal or written expression). As always, however, great care must be taken to avoid applying such provisions overbroadly to protected expression…” (emphasis added).

Greg, it would be off base and entirely Orwellian for anyone to read the ACLU’s policy on “Sexual Harassment on the College-University Campus” (Policy 72) as a prohibition on a student’s speech, when that policy addresses the power relationship of a professor or university official who exercises control over academic rewards (such as grades, letters of recommendation, etc) to coax students into sexual favors or who uses his/her power relationship over the student to harass or intimidate a student or in circumstances where such intimidation takes the form of “a pattern and practice of sexual conduct or sexually demeaning or derogatory comments…directed at a specific student or gender…with definable consequences for the student that demonstrably hinders her or his learning experience as a student.” Even that policy specifically says that it does not “extend to verbal harassment that has no other effect on its recipient than to create an unpleasant learning environment.” Policy 72, in other words, is a policy about the abuse of power by university/college officials, not about students’ free speech.

Take care,

Michael Meyers, Executive Director
New York Civil Rights Coalition

My thanks to Michael for this detailed response. I wonder if Oxy General Counsel Sandra Cooper still believes Oxy’s actions (firing a student for on-air jokes, finding him guilty of harassment, dissolving the student government, and engaging in a malicious campaign to scare off his supporters) were in accordance with ACLU policy.

I would not be the least bit surprised if, even after all this, she still does. Oxy’s stubbornness seems to be like a special kind of madness. If the General Counsel had responded to our first letter with an honest response that respected the law and students’ rights, this case would have been over a long, long time ago. Instead, the administration seems determined to dig Oxy deeper and deeper into a hole.

Schools: Occidental College