FIRE Speech Code Memorandum for Bowling Green State University

By March 4, 2013

MEMORANDUM

To: Kirsten M. Lenthe, Graduate Assistant, Student Conduct, Bowling Green State University
From: Samantha Harris, Director of Speech Code Research, Foundation for Individual Rights in Education (FIRE)
Date: March 4, 2013
Re: Speech Codes at Bowling Green State University

Introduction

Thank you very much for contacting the Foundation for Individual Rights in Education.

This memorandum is in response to your request for information about how Bowling Green State University’s (BGSU’s) policies might be revised to better protect students’ right to free speech and expression. As discussed in our email correspondence, I am very pleased to offer assistance.

FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech and expression. BGSU currently earns a “yellow light” rating because of seven policies that restrict student expression protected by the First Amendment. Fortunately, all of these policies could easily be revised to better protect student speech.

FIRE would be thrilled to work with you and others to make BGSU a green light institution and to publicize this change through our extensive national media network. By simply revising these policies, BGSU would be able to join a select group of colleges nationwide that have earned FIRE’s most favorable speech code rating.

What follows is a discussion of the specific free speech issues with each of BGSU’s seven problematic policies, as well as proposed solutions for remedying those defects while still preserving the university’s underlying intent.

I. Student Handbook: Racial and Ethnic Harassment Policy

A. Problematic Provisions

“Racial and ethnic harassment constitutes any physical or verbal behavior that subjects an individual to an intimidating, hostile or offensive educational, employment or living environment. Such harassment: A. Denigrates or stereotypes an individual because of his or her racial or ethnic affiliation; B. Demeans or slurs an individual through pictorial illustrations, graffiti or written documents or material because of his or her racial or ethnic affiliation; C. Makes unwarranted and disparaging references or innuendoes in attributing an individual’s personal conduct, habit or lifestyle due to his or her racial or ethnic affiliation.”

While BGSU has a legal obligation to prevent student-on-student (or peer) discriminatory harassment, this policy overshoots that requirement and reaches speech protected by the First Amendment. The Supreme Court of the United States has set forth a strict standard for peer harassment in the educational context, and only a policy meeting that standard is permissible at a public university such as BGSU. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Court held that peer harassment must be unwelcome, discriminatory conduct “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” By definition, this includes only extreme and usually repetitive behavior—behavior so serious that it would prevent a reasonable person from receiving his or her education. The Supreme Court’s standard properly balances public universities’ obligations to both uphold student speech rights and prevent true harassment.

BGSU’s Racial and Ethnic Harassment policy fails to meet the Davis standard in several ways. First, it contains no requirements that the conduct in question be both severe and pervasive to the extent set forth in Davis. Second, and perhaps more critically, it contains no requirement of objective offensiveness, requiring only that the individual in question perceive the environment as “intimidating, hostile, or offensive.” Without a reasonable person standard, BGSU students’ free speech rights are conditioned entirely upon subjective listener reaction—something courts have repeatedly held is impermissible in the academic environment. See DeJohn v. Temple University, 537 F.3d 301, 317 (3d Cir. 2008) (holding that because university’s sexual harassment policy did not require conduct to create an “objectively” hostile environment, it provided “no shelter for core protected speech” and thus violated the First Amendment). See also Bair v. Shippensburg University, 280 F. Supp. 2d 357, 369 (M.D. Pa. 2003) (“Thus, regulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings.”).

The examples of harassment listed in BGSU’s policy—such as speech that “stereotypes” others or demeaning “pictorial illustrations”—can only constitute harassment if they are part of a pattern of conduct that rises to the level of severity, pervasiveness, and objective offensiveness contemplated by the Court in Davis. BGSU’s policy, however, seems to suggest that these types of speech de facto constitute harassment without further inquiry—a suggestion that is likely to have a powerful chilling effect on the expression of controversial opinions on a wide range of issues.

B. Proposed Solution

As the Court’s only decision to date regarding the substantive standard for peer harassment in the educational context, Davis is controlling on this matter. Therefore, BGSU should utilize the Davis standard in its Racial and Ethnic Harassment policy, as well as in any other policy addressing peer harassment. BGSU should also ensure that any purported examples of peer harassment contained in its policies will constitute actionable harassment at BGSU only if they rise to the level of the Davis standard.

II. Student Code of Conduct: Prohibited Conduct

A. Problematic Provisions

i. “Physical abuse, verbal abuse, threats, intimidation, harassment, sexual contact without permission, stalking, coercion and other conduct which threatens or endangers the health or safety of any person.”

The prohibition here on “verbal abuse” is impermissibly vague. A policy or 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). Unlike threats, intimidation, and harassment, which have precise legal definitions, there is no guidance in the policy as to what types of communications might constitute “verbal abuse.” While abuse might refer to unprotected speech such as true threats and harassment (though such a definition would render the policy redundant), it could also be applied to harshly worded expressions of opinion which, while offensive to some, would be entitled to constitutional protection. Indeed, the Supreme Court held that a Georgia statute prohibiting “opprobrious words or abusive language” was unconstitutional because those terms, as commonly understood, encompassed speech and expression protected by the First Amendment. Gooding v. Wilson, 405 U.S. 518 (1972).

ii. “Use of computing facilities to send obscene or abusive messages.”

This provision suffers from the same problem as the one discussed immediately above. While “obscenity” has a specific legal definition, the ban on “abusive messages” is broad and undefined, potentially encompassing protected speech.

B. Proposed Solution

Both of these sections could be dramatically improved simply by removing the prohibitions on “abusive” messages and “verbal abuse.”

III. Student Handbook: Space and Facilities Reservations Including Use of Campus Grounds

A. Problematic Provisions

“Departments, student organizations or groups outside the University desiring to use campus grounds must complete an application for grounds use.”

With the exception of the one designated “Speak Out Area” (discussed in greater detail below), BGSU appears to require student organizations to apply in advance to use campus grounds for expressive activities. There are two problems with this practice. First, students must be able to engage in spontaneous expressive activity on campus. Although it is understandable that universities will want prior notice of student demonstrations when possible, there must always be some allowance for unscheduled expressive activities. This is because demonstrations and protests are often spontaneous responses to unfolding events (for instance, the Sandy Hook shootings or the September 11 attacks). Requiring students to wait any meaningful amount of time to hold a protest can significantly diminish, if not altogether eliminate, the impact of their message. While BGSU does offer the Speak Out Area for spontaneous expressive activity, there is no constitutional basis for requiring students to provide advanced notice to engage in speech and expression in traditionally public areas of campus such as lawns, quads, and other open areas.

Moreover, requiring prior administrative approval of student expressive activities (by way of an “application for grounds use”) is almost certainly an unconstitutional prior restraint on speech. As the Supreme Court has stated: “It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” Watchtower Bible and Tract Society of NY, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002).

B. Proposed Solution

BGSU policies should make clear that traditionally public, outdoor areas of campus are open for students and student groups to engage in spontaneous expressive activities so long as they do not interfere with pedestrian and vehicular traffic or otherwise impede others from enjoying access to the same public area.

IV. Student Handbook:  Speak Out Area

A. Problematic Provisions

“For the convenience of our students, faculty, staff and community members, a specifically designated ‘speak out zone,’ is available in front of the Bowen-Thompson Student Union. This area allows individuals or groups who wish to exercise their free speech rights the greatest opportunity to reach the widest audiences possible. This area is not reservable and is used on a ‘first-come, first served’ basis.”

This policy needs some clarification, in conjunction with the grounds use policy discussed above. There is no problem with the university recommending that students and other community members use a particular area for expressive activities, so long as they may engage in speech and expression—includingunscheduled speech and expression—elsewhere on campus as well. The policy states “the University, in its entirety, is considered to be an environment where free speech, the expression of ideas and thoughts, and the exchange of opinion occur.” However, when taken together with the previous policy it appears that the Speak Out Area is the only place where spontaneous expressive activities are allowed.

B. Proposed Solution

BGSU should make clear that the Speak Out Area is merely a suggested location for unscheduled expressive activities and that students may spontaneously express themselves elsewhere on campus. The University of Mississippi, which earlier this year earned a “green light” rating from FIRE, added the following language to its policy suggesting a particular area of campus for student expression: “Nothing in this section shall be interpreted as limiting the right of student expression elsewhere on the campus so long as the expressive activities or related student conduct does not violate any other applicable University policies.” BGSU could easily remedy the ambiguity of its own policy by adding similar language.

V. Poster Advertising Policy for Residence Halls

A. Problematic Provisions

“The Office of Residence Life has the right to refuse any advertising done within residence halls that does not support the goals and objectives of the department, the Division of Student Affairs or the University community.”

This provision impermissibly gives the Office of Residence Life broad discretion to deny student groups the ability to advertise their events in the residence halls on the basis of the advertisements’ content or viewpoint. If a student group were seeking to advertise, for example, a speech by a critic of illegal immigration, ORL would presumably be able to reject that posting since it could be deemed inconsistent with ORL’s stated commitment to an “inclusive environment.” The same could be said of postings advertising a wide range of student events from across the political and ideological spectrum. If student organizations are permitted to post flyers advertising their events in the residence halls, this privilege must be available to all groups regardless of whether the group’s viewpoint is consistent with ORL’s goals and objectives.

B. Proposed Solution

Instead of requiring prior approval, an ideal policy would set forth viewpoint-neutral regulations governing postings in the residence halls (number and size of posters, how long posters may remain up, etc.) and would provide that posters not complying with the regulations are subject to removal after the fact.

If BGSU’s Office of Residence Life insists on requiring prior approval of posters, however, the policy must at a minimum specify that approval will be granted on a viewpoint-neutral basis, and set forth both a clear list of criteria for approval and a reasonable time frame within which approval will be granted or denied.  See Shuttlesworth v. Birmingham, 394 U.S. 147, 150–151 (1969) (“a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional.”)

VI. Academic Resource Center: Acceptable Use Policy

A. Problematic Provisions

“Displaying distasteful or offensive material disrupts our work environment and will not be permitted.”

While this provision is most likely aimed at maintaining an environment conducive to academic work in the University’s Academic Resource Center, it is an overly broad, viewpoint-based restriction on speech. The Supreme Court has repeatedly made clear that speech cannot be prohibited by the government simply because it is offensive, even deeply so. As the Court explained in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), “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.’” See also Texas v. Johnson, 491 U.S. 397, 414 (1989) (“[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.”)

B. Proposed Solution

The university may certainly require that its Academic Resource Center be used only for academic or other university-related work, but it cannot restrict what materials users may access based solely on the viewpoint expressed or the fact that others subjectively find the material offensive or distasteful. This provision should be removed.

Conclusion

We hope this memorandum is helpful in your efforts to promote speech code reform at Bowling Green State University. Once again, each of these policies could easily be revised to better protect student speech. FIRE stands ready to help with your efforts, so please keep us updated.

Schools: Bowling Green State University