Speech Code Memorandum for University of Illinois at Urbana-Champaign

By November 1, 2013

MEMORANDUM

To: Justin Brown, Assistant Dean of Students, University of Illinois at Urbana-Champaign
From: Samantha Harris, Director of Policy Research, Foundation for Individual Rights in Education (FIRE)
Date: October 30, 2013

Re: Speech Codes at the University of Illinois at Urbana-Champaign

Thank you for contacting FIRE. This memorandum is in response to your request for information about how the University of Illinois at Urbana-Champaign’s (UIUC’s) policies could be revised to better protect students’ rights to free speech and expression.

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. UIUC is currently rated as a “yellow light” institution because of three policies that threaten protected speech on campus.

Fortunately, all three of these policies could easily be revised to better protect student speech.

FIRE would be thrilled to work with you and others to make UIUC a green light institution and to publicize this change through our extensive national media network. By simply revising these three policies, UIUC 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 UIUC’s three problematic policies, as well as proposed solutions for remedying those defects.

I.          Office of Diversity, Equity, and Access: Campus Conduct

UIUC’s Office of Diversity, Equity, and Access maintains a page on “campus conduct” that contains several problematic provisions related to sexual and discriminatory harassment.

First, it defines sexual harassment as follows:

“Sexual harassment is defined by law and includes requests for sexual favors, sexual advances or other sexual conduct when (1) submission is either explicitly or implicitly a condition affecting academic or employment decisions; (2) the behavior is sufficiently severe or pervasive as to create an intimidating, hostile or repugnant environment; or (3) the behavior persists despite objection by the person to whom the conduct is directed. The University considers such behavior, whether physical or verbal, to be a breach of its standards of conduct.”

FIRE’s concern here is with section (3) of this definition, which falls well short of the controlling legal standard for student-on-student hostile environment harassment in the educational setting as set forth by the Supreme Court of the United States. In Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), the Supreme Court made clear that in order to constitute peer harassment in the educational context, the conduct in question must be that which is “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 contrast, this policy encompasses speech that does not rise to the levels of severity, pervasiveness, and objective offensiveness that legally define harassment. First, this provision conditions the permissibility of speech on the subjective reaction of the listener. Under the policy’s definition, it does not matter if the listener’s objections are reasonable or not; if verbal conduct persists despite an individual’s objection, it constitutes sexual harassment. Because speech codes that condition speech on subjective listener reaction place free speech rights at the mercy of the most sensitive listeners, courts have repeatedly struck down such policies. See DeJohn v. Temple University, 537 F.3d 301, 318 (3d Cir. 2008) (holding that because university policy failed to require that speech in question “objectively” create a hostile environment, it provided “no shelter for core protected speech”). See also Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (“[R]egulations that prohibit speech on the basis of listener reaction alone are unconstitutional both in the public high school and university settings.”).

Second, while unwelcomeness is a necessary condition for speech to constitute harassment, it is not a sufficient one. So even if a reasonable person objected to the conduct in question (i.e., if the requirement of “objective offensiveness” were met), to be actionable as harassment the conduct must also be so severe and pervasive that the victim is “effectively denied equal access to an institution’s resources and opportunities.” So if a listener—even a reasonable listener—objected to speech simply because it was annoying, for example, the speaker would not necessarily be engaging in harassment by continuing to speak.

Fortunately, the problems with this policy can be easily resolved by simply replacing the inaccurate definition of sexual harassment with the Supreme Court’s Davis standard.

Another problematic aspect of this policy is the list of potential sexual harassment examples, which states:

“The following descriptions, while not all-inclusive, will help you understand behaviors that, if unwelcome, may constitute sexual harassment. Unwanted sexual statements – sexual or ‘dirty’ jokes, comments on physical attributes, spreading rumors about or rating others as to sexual activity or performance, talking about one’s sexual activity in front of others, and displaying or distributing sexually explicit drawings, pictures and/or written material. Unwanted sexual statements can be made in person, in writing, electronically (email, instant messaging, blogs, web pages, etc.) and otherwise.”

This list of potential examples of sexual harassment is problematic because it implies that protected speech may be subject to punishment. Again, speech is not transformed into sexual harassment simply because it is unwelcome—it must also be severe, pervasive, and objectively offensive. Suggesting that “dirty jokes” or sexually explicit written material (a category that includes, for one example of many, a great deal of classic literature) might be sexual harassment simply because a listener finds them unwelcome is likely to have a significant chilling effect on protected speech. FIRE recommends that universities simply omit these kinds of examples because of the confusion they may engender, but if it is important to the university to include such illustrative examples, they should explicitly be tied to a constitutionally sound definition of sexual harassment. So for example: “The following behaviors, if sufficiently severe, pervasive, and objectively offensive, may constitute sexual harassment … .”

Similarly, with regard to harassment more generally, the policy provides:

“There are many types of behaviors that can be harassing. Some examples are using derogatory terms, insults, telling derogatory jokes, taunting and intimidating actions.”

This language suffers from the same flaw as the language cited above: It implies that certain categories of speech, such as “derogatory jokes,” are prohibited across the board. Again, such lists of examples should either be stricken or should be explicitly tied to a constitutionally sound definition of harassment.

II.        Office of the Dean of Students: Acts of Intolerance – Reporting

This policy threatens protected speech by urging students to report to the university “acts of intolerance,” which are not defined in the policy and which explicitly include verbal conduct (one of the listed examples of reportable conduct is “name calling”). Thus, an act of intolerance could potentially include any expression of sharply stated or deeply felt views on such contentious issues as illegal immigration, affirmative action, reproductive rights, and more, as long as another individual disagrees with those views and complains that they are “intolerant.” Yet such political and social commentary is at the core of what the First Amendment protects, and the Supreme Court has made clear that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” reflecting “our profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (internal quotations omitted). A public university like UIUC cannot censor or punish speech simply because someone else finds it intolerant.

And while the policy does not explicitly state that all acts of intolerance are necessarily subject to disciplinary action, when the only conduct alleged is protected speech, even the act of investigation threatens the First Amendment rights of the person being investigated. See Sweezy v. New Hampshire, 354 U.S. 234, 245, 248 (1957) (noting that government investigations “are capable of encroaching upon the constitutional liberties of individuals” and have an “inhibiting effect in the flow of democratic expression”).

While UIUC is free to encourage tolerance as a value among its students, it may not impair, through investigation and/or threat of punishment, otherwise protected expression simply because others might find it intolerant.

III.       Registered Organization Handbook: Event Planning

This document is overly restrictive or, at the very least, is so confusingly worded that students will be unable to ascertain when and where they may engage in expressive activities on campus.

First, the policy refers to a number of areas (including “grassy areas”) that student organizations may reserve for events generally, but it identifies only Anniversary Plaza and Auditorium Terrace as “forum[s] for student expression” such as “demonstrations,” “rallies,” and “vigils.” It is unclear whether this means that students’ expressive activities are limited to these two forums, or whether the more general event spaces are also available for expressive activities. The policy is also very vague about whether any spontaneous expressive activities may take place on campus, even within the forums for student expression. It seems clear that students who are not affiliated with Registered Organizations must always reserve space in advance, but the policy seems to suggest that perhaps Registered Organizations are merely “encouraged” to make such reservations. Even this statement is not clear, however; immediately after that provision, the policy states that “[f]ailure to properly register the event and receive event approval may result in sanctions being imposed upon the sponsoring organization.”

These defects likely render this policy unconstitutionally vague. The Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, it would seem difficult if not impossible for a student—particularly a student not affiliated with a Registered Organization— reading this policy to know whether or not she was permitted to engage in spontaneous expressive activity anywhere on UIUC’s campus.

Moreover, if the policy does establish just two forums for students to engage in expressive activity, and/or require advanced registration of all student expressive activities, the policy is likely unconstitutionally overbroad. With regard to the university’s two “forum[s] for student expression,” while public universities may impose reasonable “time, place, and manner” restrictions on student expression, such restrictions must be “narrowly tailored” to serve a significant governmental interest. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)). There is nothing “reasonable” or “narrowly tailored” about transforming the vast majority of the university’s property—indeed, public property—into a censorship area by providing students with just two designated areas for free speech and leaving them uncertain as to other places on campus where they may exercise this precious right.

UIUC should also heed the lessons of recent litigation involving the University of Cincinnati, which suffered a defeat in federal court this August due to its own free speech zone policy. The university maintained a tiny free speech zone comprising just 0.1 percent of its 137-acre West Campus and further required that student activity in that area be registered with the school 10 business days in advance. In finding for the student group challenging this policy, a federal district court prohibited the University of Cincinnati from “[i]mposing or enforcing any policy restricting student speech in any designated public forum” on campus unless the restriction is “individually and narrowly tailored to serve a compelling University interest.” University of Cincinnati Chapter of Young Americans for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio June 12, 2012).

To avoid a similar result, UIUC would be well advised to make clear that the free speech areas are merely suggested locations for expressive activities and that students may express themselves elsewhere on campus. The University of Mississippi, which earns 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.” UIUC could easily remedy the ambiguity of this portion of its event planning policy by adding similar language.

With regard to the advanced registration requirement, the U.S. Supreme Court has held that “[i]t 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). Moreover, because rallies and demonstrations are often spontaneous responses to unfolding events, requiring students to wait 48 or even 24 hours before engaging in such activities may deprive them of the immediacy of their message and of the ability to truly connect with their audience. While it is perfectly reasonable for the university to ask students to provide advanced notice where possible for planning purposes, the university’s policy must make some explicit allowance for spontaneous expressive activities on campus.

We hope this memorandum is helpful in your efforts to promote speech code reform at the University of Illinois at Urbana-Champaign. FIRE stands ready to help in those efforts, so please keep us updated.

Schools: University of Illinois at Urbana-Champaign