Each month, FIRE singles out a particularly reprehensible campus speech code for our Speech Code of the Month designation. While all of 2013’s Speech Codes of the Month flagrantly violated students’ or faculty members’ right to free expression, two of them were so egregious that they deserve special mention as 2013’s Speech Codes of the Year.
Troy, a public university in Alabama, defines harassment (PDF) as “any comments or conduct consisting of words or actions that are unwelcome or offensive to a person in relation to sex, race, age, religion, national origin, color, marital status, pregnancy, or disability or veteran’s status.”
This policy prohibits a staggering amount of constitutionally protected speech, including almost any expression of a political opinion that another person finds offensive. Who among us does not routinely encounter political opinions that are “offensive” in relation to sex, race, religion, age, and so forth? Indeed, while Troy refers to this as a harassment policy, this definition bears no relationship to the legal definition of harassment in the educational setting, as set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). There, the Court defined unprotected harassment as conduct that is targeted, discriminatory, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
If you compare Troy’s definition of harassment to the Davis standard, you will see how grossly deficient it is. It requires no showings of severity or pervasiveness—a single comment is enough, even if that comment is relatively mild. Worse yet, it requires no showing of “objective offensiveness”; it is sufficient that the expression in question is “unwelcome or offensive” to the listener, something that courts have repeatedly held unconstitutional. With this policy, Troy University is violating both its legal and moral obligations to protect students’ First Amendment rights.
Virginia State University
Virginia State’s Student Code of Conduct (PDF) provides that “[s]tudents shall not injure, harass, threaten, offend, or degrade a member of the University community” (emphases added).
Like Troy, Virginia State is a public university, legally obligated to uphold its students’ First Amendment rights. Yet this policy is a clear violation of decades of legal precedent holding that speech cannot be prohibited simply because it is offensive. The Supreme Court has even addressed this issue specifically with respect to public colleges and universities, ruling that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973).
Since FIRE’s Speech Code of the Month became a regular feature in June 2005, 52 universities have revised the policies that earned them this dubious distinction, including five schools awarded Speech Code of the Month in 2013. We hope that in 2014, more universities—including those named here—will make the changes necessary to give their students and professors the freedom they deserve and are entitled to.
Happy holidays, and look for 2014’s first Speech Code of the Month in January!
Image: Troy University quad fountain - Troy University Flickr