College of William & Mary Reforms Speech Codes and Receives ‘Green Light’ Rating

By October 12, 2009

It’s not often that FIRE gets to praise a university for acting to protect the free speech rights of its students and faculty members, but today we’re happy to announce that The College of William & Mary has eliminated the last of its problematic speech policies. Because of this respect for the First Amendment rights of W&M students and faculty, we have officially changed W&M’s rating in Spotlight to a green light, a designation reserved only for universities where FIRE is unable to find a policy that seriously imperils protected speech. Unfortunately, just eleven universities out of about 400 surveyed in FIRE’s Spotlight database receive this distinction, meaning that W&M’s policy changes have landed the college amongst select company.

W&M’s reforms began in the fall of 2007, when W&M revised a Bias Incident Reporting System policy devised "to assist members of the William and Mary community-students, staff, and faculty-in bringing bias incidents to the College’s attention." Anyone could anonymously report on anyone else, and therefore trigger an investigation, for just about any reason. The policy defined a "bias incident" thusly:

A bias incident consists of harassment, intimidation, or other hostile behavior that is directed at a member of the William and Mary community because of that person’s race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status.

Such a policy is unconstitutionally overbroad because it chills (and may even lead to punishment for) protected expression. The policy even stated that the First Amendment did not protect "expressions of bias or hate aimed at individuals that violate the college’s statement of rights and responsibilities." Fortunately for protected speech on campus, that is simply incorrect. After pressure from media, students, alumni, and the general public, W&M altered the policy. Samantha wrote at the time:

In the wake of the negative publicity, William & Mary quietly made a number of significant changes to the Bias Incident Reporting System. By November 13, anonymous reporting was no longer permitted, with the website updated to the effect that "[a]nonymous reports will not be accepted." The definition of "bias" was revised to be consistent with federal anti-harassment law, now providing that "A bias incident consists of harassment of a member of the William and Mary community, including racial or sexual harassment. The College defines harassment as abusive conduct that is sufficiently severe, persistent, or pervasive to threaten an individual or limit the ability of the individual to work, study, or participate in College activities." The language about the First Amendment not protecting expressions of bias or hate also disappeared from the website. These changes make the system a lot less objectionable.

The following February, Greg spoke at W&M and called upon the college to abolish its speech codes and uphold the rights of its students. Greg’s speech was co-sponsored by the W&M Student Assembly’s Department of Student Rights, where former FIRE intern and Campus Freedom Network member Braum Katz served as Undersecretary of Student Rights for Free Speech Advocacy. 

After returning to W&M as a sophomore in the fall of 2007 following his FIRE internship, Braum immediately set to work to change W&M’s problematic policies, including the policies on harassment, discrimination, and distribution and posting. By the end of spring 2008, the W&M administration agreed to examine the policies Braum brought to its attention. The Virginia Informer, an independent campus publication, described the importance of Braum’s work for individual rights at W&M at the time: 

Freedom of speech is an individual right that is at the very heart of this nation. Such freedoms are something to be treasured in universities, where new ideas are the lifeblood of the academic world. Currently, many within the William and Mary administration seem to understand the inherent worth of allowing free speech on campus. But there are more steps that need to be taken to ensure this is maintained and expanded. The first step must be to reform our speech code, transitioning us from a "red light" to a "green light" university, as awarded by the Foundation for Individual Rights in Education (FIRE).

Last month, we received word that W&M had indeed revised a vague and overbroad Internet posting policy and eliminated a ban on anonymous postings, and we reported this happy development on The Torch. We also noted that one problematic policy remained: the Equal Opportunity Office’s policy on "discrimination" provided several examples of purported harassment that were actually hypothetical incidents of constitutionally protected expression. Samantha wrote:

W&M could very easily make the necessary revisions to this policy. The actual definition of harassment provided is not problematic; it is the list of examples, which contradicts the definition by including instances of protected speech, that is the problem. By simply doing away with the examples list, W&M could eliminate the problems with its policy, and we urge them to do so.

Now that W&M has done away with the examples, its policies no longer threaten the First Amendment rights of its students.

It is sad but true that few college and university presidents possess the courage to make their policies comport with the free speech protections of the First Amendment. Thankfully, W&M President Taylor Reveley has that courage. We congratulate President Reveley and the W&M community on their dedication to First Amendment rights and we especially thank Braum Katz for his dedication to the rights of his fellow students. As Braum says in today’s press release:

I am extremely proud of all the work that the students and administration of The College of William & Mary have done together to ensure that no student need fear exercising his or her First Amendment rights. The efforts of William & Mary students to green-light the university demonstrates that when students make demands grounded in both in law and moral integrity, administrations will listen and policies can change. These changes represent in a very palpable way the spirit of our College, the alma mater of some of our nation’s premier civil libertarians.

We too are happy that W&M is living up to its legal obligation to uphold the First Amendment rights of its students on campus. 

Schools: The College of William and Mary