Colorado State University (CSU) was poised to eliminate two unconstitutional speech codes after pressure from FIRE and student activists, but FIRE was disappointed to learn this week that unconstitutional language has found its way back into the final versions of those revised policies. FIRE is asking CSU to revert to the previous drafts of the policies circulated in April, which protected students’ First Amendment rights.
In February, concerned CSU students requested help from FIRE in contesting several unconstitutional policies that restricted expression and assembly on campus. On March 12, FIRE wrote a letter to CSU President Larry E. Penley urging him to change three unconstitutional policies: the Peaceful Assembly at CSU policy and the residence hall Advertising and Hate Incidents policies. On March 28, CSU General Counsel Loretta Martinez informed FIRE that although the Peaceful Assembly policy designates Lory Student Center Plaza as the primary public forum space, CSU in fact maintains “numerous locations” on- and off-campus “where students may and have in the past spoken and protested freely.” In response to the university’s affirmation of the right to free assembly, members of the CSU Campus Libertarians held a rally in celebration of free speech outside of the designated “primary ‘Public Forum’ space.” At that time, however, the Advertising and Hate Incidents policies remained in force.
In April, we received drafts of new Advertising and Hate Incidents policies, and we were thrilled by CSU’s proposed changes. In the draft, the Advertising policy, which previously prohibited the use of any “offensive language” and “references to alcoholic beverages or other drugs,” now prohibited only “obscene language” and provided that advertisements could not “promote illegal behavior.” This shift represented an important distinction, because the old policy was used last year to prohibit the Campus Libertarians from posting fliers supporting a marijuana legalization initiative simply because the posters contained an image of a marijuana leaf. To our chagrin, however, the unconstitutional prohibitions on offensive language and references to alcohol or drugs were reintroduced into the final version of the policy that appears in the forthcoming 2007-2008 Residence Hall Handbook.
The Hate Incidents policy, which used to prohibit “expressions of hostility” in CSU residence halls, was changed in the April draft to prohibit only true harassment and abuse. The final 2007-2008 version does not contain the “expressions of hostility” language, which is a tremendous improvement over last year’s policy. However, the final policy does contain a vague statement that “hate incidents will not be tolerated.” It is unclear whether this refers only to the harassment and abuse explicitly prohibited in the policy, or whether it encompasses other types of speech as well. For this reason, the original draft—which did not contain the vague language—is a much clearer policy and is thus much more protective of free speech.
So, let’s have the good news first—CSU has been responsive both to our concerns and student complaints, and the administration did attempt to review and revise the policies promptly. This is more than we can say for so many institutions that maintain repressive and often shameful policies and make no attempts to review or revise them, despite their often blatantly unconstitutional language.
The bad news is that, after drafting policies back in April that were so close to perfect, CSU ended up adding unconstitutional language back into the policies and missing the mark.
Still, based on CSU’s attention to this matter thus far, we are hopeful that the university will take our advice, review their policies again, and adopt language closer to their first try at a new draft. Despite their demonstrated efforts to attempt to preserve students’ rights, CSU’s upholding of these policies still leaves its students uncertain of the status of their constitutional rights on campus.