Today, FIRE brings you the next installment in our blog series on the state of free speech at America’s top 10 liberal arts colleges, as ranked by U.S. News & World Report. Up today: Pomona College, one of the five undergraduate colleges that are part of the Claremont Colleges consortium in California.
Overall, Pomona College’s speech codes are not as restrictive as some of the other schools in this blog series. Further, it’s important to note that some of the more restrictive policies are not specific to Pomona but rather are applicable to all of the Claremont Colleges, meaning that it may take a bit more legwork to get the necessary changes made.
Although Pomona is private, its students are assured the right to free speech both by the university’s own policies—which promise that the college "respects the rights of free speech and peaceable assembly and supports their exercise"—and by California law, which applies the First Amendment to private, secular colleges and universities. California’s "Leonard Law" (California Education Code § 94367, named for its author, former California State Senator Bill Leonard) provides that "[n]o private postsecondary educational institution shall make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a private postsecondary institution, is protected from governmental restriction by the First Amendment to the United States Constitution or Section 2 of Article 1 of the California Constitution."
So now, let’s take a look at the ways in which Pomona’s policies (or in some cases, the systemwide policies of the Claremont Colleges) infringe upon students’ expressive rights.
First, the "Five-College Poster and Banner Approval Policy" provides that "organizations are expected to refrain from using racial, gender or ethnic slurs, stereotypic depiction, or similar references in all advertising material" and also that "No advertising may contain explicit or implicit, written or pictorial references to alcohol beverages or drugs." While the first clause is most likely aimed at preventing the types of offensive party invitations that have gotten so many students in trouble around the country over the years, there are two problems with this. First, even highly offensive material is protected under the First Amendment and should be protected on any campus that claims to protect its students’ right to free expression. In Hustler Magazine v. Falwell, the U.S. Supreme Court ruled that the First Amendment protects even an extraordinarily offensive parody—in that case, a cartoon suggesting that the Reverend Jerry Falwell lost his virginity in a drunken encounter with his mother in an outhouse. The First Amendment protects offensive material, farce, profanity, and exaggeration. After all, these methods of communication are frequently used to make important political points. No campus that claims to take seriously the free speech rights of students can retaliate against a student merely for using offensive words.
Second, the wording of the policy is broad enough that it could squelch far more than the kind of speech at which it was presumably intended. People could easily argue that a flyer advertising a debate or speaker on a controversial issue contains a "stereotypic depiction" that renders the advertisement impermissible. For example, remember the uproar caused by a flyer at Cal Poly advertising a speech by an African-American social critic who authored a book entitled It’s OK to Leave the Plantation. Or look back at Gonzaga University‘s attempt to discipline a student group for posting a flyer advertising a speech by the author of the book Why the Left Hates America. (In both cases, the challenged flyers contained the titles of the controversial books).
The portion of the posting policy prohibiting any reference to alcohol or drugs is also too broad. The policy, taken literally, prohibits the advertisement of Alcoholics Anonymous or Narcotics Anonymous meetings, as well as the advertisement of debates on pertinent topics such as marijuana policy reform or the sentencing disparity between offenders in possession of crack cocaine versus powdered cocaine. The fact that the university might claim it does not use the policy to prohibit those types of advertisements is irrelevant; the fact is that the policy, on its face, prohibits an entire category of constitutionally protected speech. It is incumbent upon the university to get the policies right—it should not be left to the students or to FIRE to point out these fairly obvious problems.
Also of concern are two separate policies at Pomona prohibiting the electronic transmission of any "abusive" messages or images. The term "abusive" is so vague that it is impossible for students to know exactly what is prohibited, and this broad ban could potentially encompass protected speech. The term could refer only to the kind of severe and repetitive abuse that rises to the level of actual harassment (which would not be protected regardless), but it could also refer to a harshly worded argument that occurs in the course of a heated debate (which almost certainly would be protected).
The Supreme Court held in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), that a law must "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly," otherwise the law is unconstitutionally vague. The Court went on to state that "where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’" Grayned, 408 U.S. at 109 (internal citations omitted). This is what is known as an impermissible "chilling effect" on free speech.
Finally, all five undergraduate Claremont Colleges maintain variations on a systemwide "Hate Crimes and Bias-Related Incidents Protocol" that also has the potential to chill protected speech on campus. Pomona’s version of this protocol defines "bias related incidents" as "expressions of hostility against another person (or group) because of that person’s (or group’s) race, color, religion, ancestry, age, national origin, disability, gender or sexual orientation, or because the perpetrator perceives that the other person (or group) has one or more of those characteristics." Although the policy acknowledges (correctly) that some bias incidents "may be protected speech," it does not go far enough in making clear that protected speech will not be subject to punishment. As a result, the policy may have a serious chilling effect on free speech. For an example of how this policy could be changed, take a look at the bias reporting policy at the "green light" University of Virginia, which explicitly states that "[t]his definition is used for reporting and statistical purposes only. It carries no independent sanctioning weight or authority" and that
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, "For here we are not afraid . . . to tolerate error so long as reason is free to combat it." However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers.
In order to avoid infringing on students’ free speech rights, Pomona’s policy must make similarly clear that protected speech will never be subject to investigation or discipline.
Pomona College fares quite well compared to many of its peers when it comes to speech codes on campus, but it still has a bit of work to do in order to earn a green light rating from FIRE. As with all colleges and universities, we would be happy to help Pomona improve its policies.