FIRE ‘Protecting Sexual Abusers’ at Vanderbilt?

By February 28, 2011

Last week, following Adam’s talk on the state of student rights at Vanderbilt University, Vanderbilt senior Katie Des Prez penned a column in the student newspaper, The Vanderbilt Hustler, about FIRE’s criticism of the university’s speech code. Specifically, Des Prez takes issue with FIRE’s "red light" rating of Vanderbilt, arguing that the university’s restrictions on speech are wholly appropriate and that FIRE’s call for Vanderbilt to revise its speech code amounts to "protecting sexual abusers."

As Des Prez points out, Vanderbilt is a private university, and as such is not legally bound by the First Amendment, which prevents public universities from maintaining restrictive speech codes. Vanderbilt is, however, morally and perhaps even legally bound by the promises it makes to its studentsand Vanderbilt assures its students, as Des Prez acknowledges, that they "are entitled to exercise the rights of citizens and are subject to the responsibilities of citizens."

In the United States, the "rights of citizens" include the right to speak freely within the parameters of the First Amendment. Des Prez seems to argue that "the responsibilities of citizens" include, on a university campus, the responsibility to engage only in civil expression and to submit to the other constraints on expression that Vanderbilt has deemed necessary. Thus, she argues, FIRE has read Vanderbilt’s commitment to free speech incorrectly. Personally, however, I find the statement that students "are entitled to exercise the rights of citizens and are subject to the responsibilities of citizens" to be crystal clear: Students do not give up their basic rights by enrolling at Vanderbilt, nor is Vanderbilt a shelter from the laws applicable to citizens generally. To read anything else into that statement is a stretch to say the least, and if Vanderbilt wishes to deny students the fundamental rights to which they would be entitled at any of Tennessee’s public colleges and universities, Vanderbilt needs to be much clearer about it than that, so that prospective students know that they would be denied those rights if they enrolled at Vanderbilt.

In addition to defending Vanderbilt’s restriction of protected speech in spite of its promise not to, Des Prez also defends the substance of the university’s speech code. One of the policies that FIRE criticizes is Vanderbilt’s "Community Creed," which states that Vanderbilt students have an "obligation" to honor certain enumerated principles, including "civility." FIRE gives this policy a "yellow light" because it could too easily be used to suppress protected speech. While the policy would be unobjectionable if it were stated in writing as purely an aspirational statement of the university’s values, the fact that the Creed is framed in terms of an "obligation" and a "pledge" to uphold the values leaves open the very real possibility that students could face discipline for failing to do so.

On civility, Des Prez writes that "[t]he concern that civility impedes the open exchange of ideas is baseless." I could say a lot about this, but I couldn’t say it any better than federal magistrate judge Wayne Brazil did when he ordered San Francisco State University to stop enforcing the California State University system’s civility policy because it unconstitutionally impeded the open exchange of ideas. First, he noted that "the word ‘civil’ is broad and elastic – and its reach is unpredictably variable in the eyes of different speakers." He then discussed why a "civility" requirement is likely to have a profound chilling effect on protected expression and vigorous debate:

Civility connotes calmness, control, and deference or responsiveness to the circumstances, ideas, and feelings of others. … Given these common understandings, a regulation that mandates civility easily could be understood as permitting only those forms of interaction that produce as little friction as possible, forms that are thoroughly lubricated by restraint, moderation, respect, social convention, and reason. The First Amendment difficulty with this kind of mandate should be obvious: the requirement "to be civil to one another" and the directive to eschew behaviors that are not consistent with "good citizenship" reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to her cause. Similarly, mandating civility could deprive speakers of the tools they most need to connect emotionally with their audience, to move their audience to share their passion.

In sum, there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and the most effective.

Brazil’s eloquent explanation of the dangers of civility policies should be taken quite seriously by Vanderbilt administrators.

Des Prez also defends Vanderbilt’s red-light sexual harassment brochure, which defines sexual harassment as "any unwanted, unsolicited, or undesired attention of a sexual nature," including "sexist remarks" and "remarks or jokes that denigrate because of gender." These examples go far beyond Vanderbilt’s own green-light sexual harassment policy (.pdf). Yet, referring to those who violate the policy as "sexual abusers," Des Prez states, "We live in our educational environment, and undesired sexual attention can make us feel unprotected here. This would necessarily deprive us of the benefits and opportunities that are afforded to us."

There are several problems in her statement. First, and I’ll say more on this in a bit, the brochure– which states that sexist remarks or denigrating jokes about gender are violations of the policy–prohibits a great deal more than "undesired sexual attention." That aside, however, the notion that any and all undesired sexual attention is harassment that necessarily deprives students of educational benefits and opportunities is ridiculous. There is a world of difference between an off-color joke or isolated crass remark and a pattern of conduct that truly interferes with someone’s daily life. Treating everyone who engages in any offensive sex- or gender-related expression as a "sexual abuser" (a term which, it should be noted, Vanderbilt does not use in its harassment materials) dangerously trivializes actual abuse and could only be enforced in the most authoritarian of environments.

However, the dangers of this sexual harassment policy go beyond equating a single instance of offensive speech with a pattern of harassing conduct. By prohibiting any subjectively "sexist remarks" or "remarks or jokes that denigrate because of gender," this policy threatens to chill debate on exactly the kinds of controversial issues that should be discussed at a university. Indeed, there are many serious and legitimate expressions of opinion that some would say are sexist or denigrate one gender. Just ask the United States Court of Appeals for the Third Circuit, which struck down Temple University’s former sexual harassment code on First Amendment grounds in the precedent-setting 2008 case of DeJohn v. Temple University [.pdf]. The Third Circuit found that the code, which prohibited (among other things) "generalized sexist remarks and behavior," violated the First Amendment because students discussing gender issues like the role of women in the military would be potentially subject to punishment under the terms of the code. As the Third Circuit ruled, "[d]iscussion by adult students in a college classroom should not be restricted."

To be clear, FIRE does not believe, as Des Prez falsely suggests we do, that there is a "right to sexual harassment"we believe that Vanderbilt’s brochure has defined sexual harassment so broadly as to include a great deal of non-harassing, and in fact socially significant, speech and expression.

Finally, Des Prez defends the university’s prohibition on "lewd" and "lascivious" expression by arguing that "lewd and obscene are almost exact synonyms, and both of these words imply exactly the definition of obscenity: something without scientific or artistic merit." This argument, however, is simply not true. "Obscenity" has a clear legal definition that includes only very explicit sexual materials that lack political, social, or artistic value. "Lewd" and "lascivious" have no such legal definitions, and thus can be defined subjectively to include a wide variety of sexual expression that may indeed have political, social, or artistic value, and that may be far less sexually explicit than legally obscene materials.

Eve Ensler’s The Vagina Monologues, which has been performed on numerous occasions at Vanderbilt, includes a monologue entitled "Reclaiming Cunt"– is that lewd? Lascivious? Should advertisements for the performance be restricted? In April, Vanderbilt’s Women’s Center will be hosting a discussion entitled "Let’s Get It On: Sex at Vandy," where students are invited to discuss "sizzling gender-related topics." What, precisely, is the difference between "sizzling" and "lascivious"? Does Des Prez know? Does anyone? Or should the university perhaps get out of the business of making arbitrary judgments about sexual expression that falls short of the legal definition of obscenity?

Unless Vanderbilt is truly prepared to advertise itself as a place where students give up their fundamental expressive rights upon enrollmentsomething very few prestigious colleges and universities wish to do, given the almost certain impact such a statement would have upon the recruitment of talented faculty and studentsthese restrictions on student speech are inappropriate, and FIRE will continue to argue vigorously for their repeal and for the free speech rights of Vanderbilt students.

Schools: Vanderbilt University