FIRE Letter to SUNY Chancellor Nancy L. Zimpher, March 5, 2012

By on March 5, 2012

March 5, 2012

Chancellor Nancy L. Zimpher
State University of New York
Office of the Chancellor
State University Plaza
353 Broadway
Albany, New York 12246 

Sent via U.S. Mail and Facsimile (518-320-1560)

Dear Chancellor Zimpher:

As you can see from our list of Directors and Board of Advisors, FIRE unites civil rights and civil liberties leaders, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, due process, legal equality, voluntary association, religious liberty, and freedom of speech on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

I write you today regarding a policy maintained by several institutions within the State University of New York (SUNY) system that unconstitutionally restricts the free speech rights of SUNY students. This systemwide policy prohibits "bias incidents," defined as "acts of bigotry, harassment or intimidation directed at a member or group … based on national origin, ethnicity, race, age, religion, gender, sexual orientation, disability, veteran status, color, creed or marital status." This policy prohibits speech protected by the First Amendment—speech that SUNY institutions, as public universities, are legally bound to protect. Revising this policy would not only satisfy the constitutional obligations of SUNY institutions, but would also demonstrate to campus constituents, alumni, and the general public that the SUNY system honors and protects freedom of expression.

The policy in question is currently maintained by several SUNY institutions, including Binghamton University, SUNY Albany, SUNY Brockport, SUNY Fredonia, SUNY New Paltz, SUNY College of Environmental Science and Forestry, and the University at Buffalo. While the specific policy maintained by each institution varies slightly in wording and title, each of the policies prohibits "bias incidents" and defines such incidents as "acts of bigotry, harassment or intimidation directed at a member or group" based on listed personal characteristics. Binghamton University, for example, maintains a policy on "Hate Crimes Prevention" in its Student Handbook that states, in pertinent part: 

In addition to preventing and prosecuting hate/bias crimes, New York State University Police, staff in the Division of Student Affairs, the University Ombudsman and the Affirmative Action Office assist in addressing bias-related activities that do not rise to the level of a crime. These activities, referred to as bias incidents and defined by the University as acts of bigotry, harassment or intimidation directed at a member or group within the Binghamton University community based on national origin, ethnicity, race, age, religion, gender, sexual orientation, disability, veteran status, color, creed or marital status, may be addressed through the State University of New York’s Discrimination Complaint Procedure or the Code of Student Conduct. Bias incidents may be reported to University Police or to staff as noted above. 

[Emphasis added.]

This policy—like its counterparts at the other SUNY institutions—violates the free speech rights of students in several respects.

First, the policy is impermissibly vague, as it fails to define in any way what might constitute an "act[] of bigotry" based on another’s personal characteristics. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Because the term "bigotry" is not self-defining or self-limiting, students are left to guess at the type of speech or expressive activity their institution may find to be "bigoted" for purposes of this policy. After all, speech that is considered by one person to be bigoted may be perfectly acceptable—even tame or innocuous—to another. Furthermore, as a result of this vagueness, the policy vests nearly unbridled discretion in the hands of administrators charged with applying it, opening the door to selective enforcement and viewpoint-based discrimination against disfavored speech.

Second, the policy is unconstitutionally overbroad on its face. A statute or law regulating speech is unconstitutionally overbroad "if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate." Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Much speech that may be characterized as "bigotry" is nevertheless entitled to constitutional protection. This includes, for instance, deeply held or sharply expressed views on such contentious issues as affirmative action, illegal immigration, gender wage gaps, religious opposition to the practice of abortion, and much more. Surely the SUNY system does not wish to shut down such vital discussion on its campuses, particularly political and social debate over the issues of the day, which lie at the core of the First Amendment’s protections. As the Supreme Court has counseled, "speech concerning public affairs is more than self-expression; it is the essence of self-government," reflecting "our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) (internal quotations omitted). 

Indeed, the Supreme Court has made clear that "[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U.S. 397, 414 (1989). This guiding principle extends to the public college campus. The Court declared inPapish v. Board of Curators of the University of Missouri410 U.S. 667, 670 (1973) (internal citations omitted), that "the mere dissemination of ideas—no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Under these and other controlling precedents, it is clear that this policy prohibits protected student expression, rendering it overbroad on its face.

In addition, the policy prohibits "acts of … harassment" but fails to define the term "harassment" in any way. Yet student-on-student (or peer) harassment in the educational setting has a precise legal definition as set forth by the Supreme Court, and only a policy meeting that standard is permissible at a public university. This exacting, speech-protective standard requires the conduct in question to be (1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected class, such as race, (4) targeted at an individual, and (5) "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit" to constitute actionable harassment. Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). By definition, this includes only extreme and usually repetitive behavior, directed at the victim, so serious that it would prevent a reasonable person from receiving his or her education.

As the Supreme Court’s lone decision to date regarding the substantive standard for peer harassment, Davis is controlling on this matter. Moreover, the Davis standard provides a simple solution to the problem of unconstitutional harassment policies: it maximally protects student speech rights while also addressing schools’ legal obligation to prevent actual harassment of students.

Twice in recent years, the United States Court of Appeals for the Third Circuit has struck down, on First Amendment grounds, universities’ harassment policies for failing to meet the Davis standard.See McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010) (invalidating harassment policy prohibiting "any act which causes … mental harm or which … frightens, demeans, degrades or disgraces any person"); DeJohn v. Temple University, 537 F.3d 301, 318 (3d Cir. 2008) (striking down sexual harassment policy that "provide[d] no shelter for core protected speech"). While the state of New York is of course not in the Third Circuit’s jurisdiction and the McCauley and DeJohn opinions are thus not binding on the SUNY system, the Third Circuit’s holdings in both cases are relevant when considering the constitutionality of the policy in question, which is similarly likely to fail to pass constitutional muster. In light of the DeJohn and McCauley decisions—both recent decisions by a federal appellate court—all public colleges and universities should be on notice that any policy governing peer harassment must meet the Davis standard in order to be in compliance with the First Amendment.

Lastly, the systemwide policy prohibits "acts of … intimidation" but fails to define this term at all. Like peer harassment, "intimidation" has a precise legal meaning in the realm of the First Amendment, and a policy that merely bans "intimidation" without providing any guidance regarding the prohibition is untenable at a public university. In Virginia v. Black, 538 U.S. 343, 359-360 (2003), the Supreme Court held that "true threats," as an exception to the First Amendment, "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals," and that "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." Unless student conduct rises to this level, it cannot be sanctioned as "intimidation." In particular, an individual’s subjective sense of feeling "intimidated" should not suffice under this policy. Thus, the term’s inclusion in the systemwide policy, without any explanation or illustration, contributes to the policy’s defects of vagueness and overbreadth.

Again, let me remind you that the SUNY schools are public universities bound by the First Amendment, and thus must abide by the Supreme Court’s free speech rulings. The Court has long held that public universities occupy a special place in our nation’s First Amendment jurisprudence and that "the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Healy v. James, 408 U.S. 169, 180 (1972). 

FIRE asks that the SUNY system revise its member institutions’ policies on "bias incidents" to make them consistent with the requirements of the First Amendment and, to prevent campus speech from being impermissibly chilled, that you clarify to students and administrators that protected expression may never and will never be investigated or punished at the SUNY institutions. We ask for a response by March 26, 2012. 

Thank you for your attention and sensitivity to these important concerns. I look forward to hearing from you. Of course, FIRE stands ready to assist you with the necessary policy revisions.

 

Sincerely,

Azhar Majeed
Associate Director of Legal and Public Advocacy 

cc:
Harvey G. Stenger, President, Binghamton University
George M. Philip, President, University at Albany
John R. Halstead, President, State University of New York-Brockport
Dennis L. Hefner, President, State University of New York-Fredonia
Donald P. Christian, President, State University of New York-New Paltz
Satish K. Tripathi, President, University at Buffalo
Cornelius B. Murphy, Jr., President, State University of New York College of Environmental      Science and Forestry