SUNY System Refuses to Fix Unconstitutional Bias Incident Policy

By August 23, 2012

It’s not often that one has the opportunity to reform an unconstitutional policy affecting an entire state university system in one fell swoop.  

That has been precisely the case with the State University of New York (SUNY) system, owing to its maintenance of a systemwide policy on "bias incidents" restricting students’ free speech. But despite months of entreaties from FIRE, SUNY has not seen fit to revise its policy or to substantively answer our concerns. That’s too bad, because the public university system’s leaders could have, in one quick and easy act, taken a major step toward upholding the First Amendment rights of students throughout its campuses.  

FIRE first wrote to SUNY system Chancellor Nancy L. Zimpher about the bias incidents policy on March 5, 2012. As we stated in our letter, while the specific policy maintained by each SUNY institution varies slightly in wording and title, each policy prohibits "bias incidents" and problematically defines such incidents as "acts of bigotry, harassment or intimidation directed at a member or group" based on listed personal characteristics such as race, religion, age, and ethnicity. This policy can be found at SUNY campuses from Binghamton to Fredonia to New Paltz to the College of Environmental Science and Forestry. We pointed out to Chancellor Zimpher that the policy was indefensibly vague and overbroad on its face, in particular the ban on acts of "bigotry":

Because the term "bigotry" is not self-defining or self-limiting, students are left to guess at the type of speech or expressive activity their institution may find to be "bigoted" for purposes of this policy. After all, speech that is considered by one person to be bigoted may be perfectly acceptable-even tame or innocuous-to another.  

The result of this amorphous, open-ended restriction is that a great deal of protected speech-speech that should be taking place on, of all places, a college campus-is subject to punishment, and even chilled from being expressed in the first place. Our letter stated: 

This includes, for instance, deeply held or sharply expressed views on such contentious issues as affirmative action, illegal immigration, gender wage gaps, religious opposition to the practice of abortion, and much more. Surely the SUNY system does not wish to shut down such vital discussion on its campuses, particularly political and social debate over the issues of the day, which lie at the core of the First Amendment’s protections. 

Finally, our letter took on the fact that the systemwide policy fails to define "harassment" or "intimidation" in any appreciable way, despite these terms having precise (and speech-protective) legal standards under controlling Supreme Court precedents. 

Unfortunately, we received no response to our letter. 

We then wrote again on May 31, echoing many of the same points and adding that if the SUNY system wished to encourage its students to follow certain institutionally preferred values (such as refraining from "bigoted" speech), it was free to do so as long as it made clear these were aspirational values and not mandatory ones under pain of disciplinary action. We illustrated that universities have successfully done this, even including an example specifically of an aspirational bias incident policy-the University of Virginia’s "Bias Reporting Web Site," which states, in relevant part: 

Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation."

That would seem easy enough to replicate, right? It’s one sentence that makes clear that protected speech will not result in investigation or punishment. 

Rather than follow this model, however, SUNY dug in and defended its policy. In a June 18 letter, SUNY Deputy General Counsel Marti Anne Ellerman responded with two main points: (1) "we take issue with your statement that the State University and its campuses are engaged in violations of our students’ First Amendment rights" (despite the fact that they, well, are); and (2) "Should you provide us with more detailed information about the policy described we will respond at that time. We decline to react to vague assertions about generalized policies" (despite the fact that FIRE’s two previous letters went into great detail about the problematic language in the policy, the relevant cases for those issues, and the ways in which the SUNY system could fix the policy).

We gave it one last college try, writing to SUNY a third time on July 3 to offer our help in revising the policy. SUNY has not responded to this letter or otherwise responded substantively to our points dating back several months. 

At this point the ball is in SUNY’s court, though its leadership should know that FIRE stands by ready to assist at any time if it wishes to reform its unconstitutional systemwide policy. Therefore, I urge Chancellor Zimpher and SUNY’s leadership to review our letters and take our points into consideration, so that the necessary (and relatively simple) changes can be made. It’s not too late to stand up for SUNY students’ free speech rights.

Of course, if Chancellor Zimpher wants to think about what can happen when you let an unconstitutional policy sit around for too long, she need look no further than the University of Cincinnati (UC), where she formerly served as president. Given UC’s recent defeat in federal court, I hope the lesson is pretty easy to figure out!