FIRE announces its Speech Code of the Month for October 2012: the State University of New York at New Paltz (SUNY New Paltz).
The university’s “Non-Discrimination/Anti-Harassment Policies & Procedures (PDF),” which apply “to all members of the campus community,” prohibit:
Distribution, display or discussion of any written or graphic material that ridicules, denigrates, insults, belittles, or shows hostility or aversion toward an individual or group because of protected status.
Protected status includes a wide variety of characteristics including sex, sexual orientation, race, religion, and military status. While the university may—indeed must—prohibit actual harassment on the basis of these categories, this policy goes far beyond the legal definition of student-on-student (or peer) harassment and restricts not only protected speech, but core political speech of the sort that lies at the heart of the First Amendment’s protections.
In Davis v. Monroe County Board of Education (1999), the Supreme Court defined peer harassment in the educational context as conduct that 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.” SUNY New Paltz’s policy ignores this carefully tailored standard, which represents the correct balance, legally speaking, between public universities’ dual obligations to prevent harassment and to uphold students’ free speech rights.
By ignoring this standard, SUNY New Paltz’s harassment policy veers dramatically into the territory of speech protected by the First Amendment. Imagine, for example, a religious student explaining his opposition to gay marriage to a group of fellow students debating the issue. Or, alternatively, a gay student expressing why he believes members of a particular religion are wrong to oppose gay marriage. Might those students’ statements “insult” members of the other group? It’s quite possible. Might they be interpreted to show “aversion” to a group of people on the basis of sexual orientation or religion? Certainly. Are they protected by the First Amendment? Without a doubt. While suppressing debates like this may not be the intent of SUNY New Paltz’s policy, the plain language of the policy applies to so much protected expression that it is bound, eventually, to have that effect.
It is particularly surprising to see such a repressive speech code in the SUNY system, since one member institution—SUNY Brockport—was already forced to revise its speech code as part of a legal settlement. That policy prohibited “jokes making fun of any protected group” and “cartoons that depict religious figures in compromising situations”—not so different from the insults and shows of aversion prohibited at SUNY New Paltz.
This overbroad harassment policy unequivocally cannot stand at a public university like SUNY New Paltz. For this reason, it is our October 2012 Speech Code of the Month.
If you believe that your college’s or university’s policy should be a Speech Code of the Month, please email firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in supporting free speech on campus, consider joining FIRE’s Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month widget to your blog or website and help shed some much-needed sunlight on these repressive policies.