Did Penn State Rescind Its Speech Code?

by Sean Clark

May 22, 2006

While being faced with a federal lawsuit challenging the constitutionality of several university policies, Penn State University appears to have rescinded its speech codes.

Sometime over the weekend, with no announcement, Penn State changed two of its policies that were cited in the lawsuit. Penn State’s “AD29 Statement on Intolerance“ no longer bans

attitude, feeling or belief in furtherance of which an individual acts to intimidate, threaten or show contempt for other individuals or groups based on characteristics such as age, ancestry, color, disability or handicap, national origin, political belief, race, religious creed, sex, sexual orientation or veteran status.

Instead the policy now contains a specific guarantee of freedom of speech:

The expression of diverse views and opinions is encouraged in the University community. Further, the First Amendment of the United States’ Constitution assures the right of free expression. In a community which recognizes the rights of its members to hold divergent views and to express those views, sometimes ideas are expressed which are contrary to University values and objectives. Nevertheless, the University cannot impose disciplinary sanctions upon such expression when it is otherwise in compliance with University regulations.

The university also significantly altered “AD42 Statement on Nondiscrimination and Harassment,” which was recently used as justification by a professor to censor an art display. The policy use to define harassment as

unwelcome banter, teasing, or jokes that are derogatory, or depict members of a protected class in a stereotypical and demeaning manner, or any other conduct which has the purpose or effect of interfering unreasonably with an individual’s work or academic performance or creates an offensive, hostile, or intimidating working or learning environment.

But now the policy contains only language that is consistent with established EEOC guidelines and Supreme Court precedent. The new policy defines harassment as such:

Harassment is a form of discrimination consisting of physical or verbal conduct that (1) is directed at an individual because of the individual’s age, ancestry, color, disability or handicap, national origin, race, religious creed, sex, sexual orientation, gender identity or veteran status; and (2) is sufficiently severe or pervasive so as to substantially interfere with the individual’s employment, education or access to University programs, activities and opportunities. To constitute prohibited harassment, the conduct must be such that it detrimentally affects the individual in question and would also detrimentally affect a reasonable person under the same circumstances.

Harassment may include, but is not limited to, verbal or physical attacks, threats, slurs or derogatory comments that meet the definition set forth above. Whether the alleged conduct constitutes prohibited harassment depends on the totality of the particular circumstances, including the nature, frequency and duration of the conduct in question, the location and context in which it occurs and the status of the individuals involved.

Furthermore, the policy now specifically notes:

These definitions are not intended to deprive an individual of the right of free expression or other civil rights.

Penn State has taken a step in the right direction in correcting its unconstitutional policies. But, the problem of unconstitutional and immoral speech codes is still pervasive. Perhaps the hundreds of colleges and universities identified as “red light” schools in Spotlight: The Campus Freedom Resource will change their unconstitutional speech codes before they are faced with a lawsuit.