Student Rights in Jeopardy as University of Massachusetts Considers New Speech Codes

By April 26, 2011

In the wake of government pressure on universities to address sexual harassment and bullying on campus, a committee at the University of Massachusetts Amherst (UMass) has proposed revisions (.pdf) to the university’s Code of Student Conduct that would severely compromise the rights of UMass students. Last Friday, FIRE sent an urgent letter to UMass detailing the problems with the proposed changes and reminding the university of its obligation, as a public institution, to uphold its students’ First Amendment rights.

While the number of restrictive speech codes on college campuses has declined slightly over the last few years, two recent developments threaten to bring them back. First, following the death of Rutgers University student Tyler Clementiwho sadly committed suicide after a video of him engaging in sexual activity with a man was streamed on the Internet by two studentsuniversities have come under a great deal of pressure to address instances of "bullying" and "cyberbullying" on campus. Although Clementi was the victim of criminal conduct, already prohibited by law and by university policy, his case has led to calls to crack down on a wide range of speech and expression that, while hurtful, is protected by the First Amendment. Among other measures, Congress is currently considering the Tyler Clementi Higher Education Anti-Harassment Act, a bill that poses significant First Amendment concerns. Further, the Department of Education’s Office for Civil Rights (OCR) issued a "Dear Colleague" letter to university administrators across the country in October of last year reminding them of their obligation to address bullying under federal regulations governing student-on-student harassment.

Second, recent sexual harassment guidance from OCR represents a significant step back from OCR’s previous guidance that universities must be mindful of their First Amendment obligations when adopting and enforcing anti-harassment regulations. As FIRE said in our April 4, 2011, statement responding to the new OCR guidance,

In discussing the legal obligations borne by colleges and universities under Title IX to respond to both sexual harassment and sexual violence committed against students, OCR fails to sufficiently recognize the fact that public universities may not violate the First Amendment rights of their students and that private universities must honor their promises of freedom of expression to their students.

In light of these developments, it is distressing but not surprising that universities are revisiting their speech codes. On April 15, UMass’ Special Commission on the Code of Student Conduct, which had been tasked by the administration with reviewing the Code, released a draft report recommending a variety of changes to the Code. UMass announced this via a press release as well as in a message to the campus community giving them one week to provide feedback on the numerous changes proposed in the report. Several of these proposed changes should be of serious concern to anyone concerned with students’ rights.

First, a proposed introduction to the Code sets forth a set of institutional values including "civility," "social justice," and "social responsibility," and states that once students "choose to accept admission," they are expected to "uphold the above stated values." As FIRE pointed out in our letter, a public university categorically may not, consistent with the First Amendment, "require students to adopt a specific set of ideological values as a condition of membership in the university community." As the Supreme Court famously held in West Virginia State Board of Education v. Barnette, "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

The draft report also recommends adding a prohibition on "bullying" to the Code, and defines the term so broadly as to encompass a great deal of protected speech. Among other things, bullying at UMass would include speech or expression that causes "emotional harm" to its intended victim. Emotional harm is an extremely vague term that could mean anything from severe emotional distress to mere hurt feelings, so students reading the proposed policy would have no way of knowing what is prohibited. Moreover, the policy’s lack of any objective componenta "reasonable person" standardmeans that speech and expression would be punishable so long as the victim, however unreasonably sensitive, feels harmed. And, as FIRE’s letter notes, even most speech that would cause a reasonable person to feel upset or distressed is still protected by the First Amendment.

Along the same lines, the report recommends adding a prohibition on "relationship violence," whichin addition to prohibiting actual violencealso prohibits any "emotion [sic] and psychological harassment." By prohibiting this type of "harassment" without defining the term in any way, this policy would infringe on even more constitutionally protected speech and expression.

FIRE’s letter details all of the legal concerns raised by these proposed changes. We hope that UMass will take these issues seriously and will not enact new policies that further infringe on UMass students’ First Amendment rights. (I say further because, as our letter notes, UMass already maintains several speech codes that impermissibly restrict students’ right to free speech.) However, we also suspectwith a sense of impending dreadthat these proposed changes at UMass are just the tip of the iceberg in terms of the upcoming responses by universities to all of this federal pressure. Anyone who cares about student rights should be profoundly concerned by these developments and we hope you will help FIRE continue to fight this gathering storm.

Schools: University of Massachusetts – Amherst