Open Letter from FIRE to Florida Governor Rick Scott

By on March 29, 2013

March 29, 2013

Governor Rick Scott
The Capitol
Tallahassee, Florida 32399

Sent via U.S. Mail and Facsimile (850-922-4292)

Dear Governor Scott:

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization uniting leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, academic freedom, due process, freedom of speech, and freedom of conscience on America’s college campuses. Our website, thefire.org, will give you a greater sense of our identity and activities.

FIRE writes to you today in response to your March 26, 2013, letter to Chancellor Frank T. Brogan of the State University System of Florida regarding Florida Atlantic University’s (FAU’s) investigation of student Ryan Rotela. As you likely know, FAU responded to the classroom incident in question by charging Rotela with violating its Student Code of Conduct, specifically its provision prohibiting “[a]cts of verbal, written (including electronic communications) or physical abuse, threats, intimidation, harassment, coercion or other conduct which threaten the health, safety or welfare of any person.”

We share your concern about the threat to students’ First Amendment rights demonstrated by this case. FAU’s enforcement of this policy against Rotela—indeed, the mere maintenance of a speech code violating the First Amendment—sends the pernicious message to students and faculty at FAU that they may face unconstitutional censorship and punishment for disagreeing with professors or expressing views that others may disagree with or find offensive. The speech code enforced by FAU against Rotela had been previously identified by FIRE as a policy that, by virtue of its vague wording, could too easily be used to restrict protected expression.

This is not a problem specific to FAU; rather, many of Florida’s public colleges and universities maintain similarly unconstitutional speech codes. Therefore, we write today to urge you to work toward the revision of Florida institutions’ speech codes so that such an incident will not occur again on any Florida public campus.

At Florida’s public colleges and universities, policies similar to the one enforced by FAU in this case abound.

  • Florida International University’s Student Code of Conduct, for example, bans “[v]erbal or written abuse of any person including, [sic] indecent or obscene expressions or conduct.”
  • The University of Central Florida prohibits “[v]erbal or written abuse, threats, intimidation, coercion and/or other conduct that endangers the health, safety, or wellbeing [sic] of others.”
  • The University of North Florida flatly bans “the use of offensive or abusive language” (emphasis added).

These policies stand in direct contradiction to the Supreme Court of the United States’ ruling that a 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). FAU’s application of its policy to the Rotela case provides a perfect illustration of such unconstitutional overbreadth.

Further, like FAU’s undefined, amorphous ban on “harassment,” many Florida institutions maintain similarly unconstitutional harassment policies that threaten student and faculty speech.

  • Florida State University, for example, lists such purported examples of sexual harassment as “use of gender-based verbal or written language offensive or degrading to a person of that gender, whether or not the content is sexual” (emphasis added).
  • In a separate sexual harassment policy, Florida State also prohibits any and all “unwanted, unwelcome, inappropriate, or irrelevant sexual or gender-based behaviors, actions or comments.”

Would comments opposing or supporting gay marriage or women in the military be considered offensive by some at Florida State? Certainly. Does this mean that such topics may never be discussed on campus, as Florida State’s policies appear to demand?

These restrictions on protected speech are all the more disappointing given that the Supreme Court has provided a clear standard for student-on-student harassment in the educational setting. As set forth by the Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), peer harassment in the educational setting is no more and no less than conduct that is (1) unwelcome; (2) discriminatory; (3) directed at an individual; and (4) “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.” This standard properly balances universities’ obligations to both uphold student speech rights and prevent true harassment, and institutions in the state of Florida would be well advised to adopt the Supreme Court’s controlling standard in all of their policies addressing peer harassment.

Federal and state courts have consistently struck down university speech codes on First Amendment grounds over the past two decades, and FIRE believes that Florida’s speech codes are similarly vulnerable to a legal challenge. In light of these concerns, FIRE suggests that any report on what went wrong at FAU focus on the unconstitutional speech codes on FAU’s campus and on campuses across Florida that allow such incidents to take place. We further urge you to advocate for, and to work toward, the reform of campus speech codes at Florida’s public colleges and universities. The recent controversy at FAU is a stark reminder that these policies are an ever-present threat to students’ and faculty members’ fundamental First Amendment rights, and we hope that the state of Florida will seize upon it to improve the state of free speech on its campuses.

Thank you for your attention and sensitivity to these important concerns, and please feel free to contact us if you need further information or assistance.

Sincerely,

Greg Lukianoff
President