This week’s Clarion Call, the weekly column of the John William Pope Center for Higher Education Policy, highlights FIRE’s speech code victory at Fayetteville State University. Fayetteville State’s Code of Student Conduct was picked as FIRE’s Speech Code of the Month for January 2007. It defined racial harassment as:
[V]erbal or physical behavior that stigmatizes or victimizes an individual on the basis of race and involves an express or implied threat to another person’s academic pursuits or participation in activities sponsored by the University or organizations or groups related to the University.
It was identical to a University of Michigan speech code struck down as unconstitutional in 1989 in Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989). The problem with such vague policies is that their enforcement is necessarily arbitrary, as John Locke Foundation policy analyst Jon Sanders writes in the Clarion Call:
Enforcing a vague speech code is no small matter on a university campus, where the interpretation of threats can be heavily politicized. The Pope Center/FIRE report cited an example of a case at William Paterson University of New Jersey in which a Muslim student had requested on religious grounds that a women’s studies professor stop sending him unsolicited e-mails advertising a campus production of a “lesbian relationship story.” The professor interpreted the request itself as harassment.
Or consider a current case that FIRE is working on. At Hamline University in Minnesota, shortly after the Virginia Tech massacre, university administrators sent e-mail messages to the entire campus community discussing the tragedy. A student named Troy Scheffler responded by saying university officials should “reconsider [their] ban on conceal carry law abiding gun owners” in order to protect students from being defenseless before a Columbine-inspired killer, noting, as many commentators and even Virginia Tech students had then, that VT had had a gun ban in place at the time of the massacre. For that, Scheffler was suspended and told to undergo a psychological examination before returning.
In January 2006, the Pope Center and FIRE collaborated on the report “The State of the First Amendment in the University of North Carolina System.” Fayetteville State’s code was a problem then, but thanks to FIRE, it is a problem no longer. At least some of the students in the University of North Carolina System have had their First Amendment rights returned to them.