In the past year, the University of Florida made some significant changes to its "Guidelines on Sex Discrimination, Sexual Harassment, and Harassment" ("the Guidelines") that eliminate some of that policy’s most egregious constitutional violations. But whoever correctly realized that the Guidelines needed to be rewritten clearly did not review the university’s other policies, because several unconstitutional policies remain on the books. Given that the university went to the effort to correct constitutional deficiencies in one of its policies, it should review and revise the others as well, since as things stand it would still—as a public university bound by the First Amendment—be vulnerable to legal action.
Last year, the Guidelines defined harassment as "the creation of a hostile or intimidating environment in which verbal or physical conduct is so severe or persistent that it is likely to interfere significantly with someone’s work, education, or on-campus living conditions." (Emphasis added). In this year’s Guidelines, the definition of harassment has been changed to require the hostile environment to be both "severe and pervasive." (Emphasis added). This change is consistent with the U.S. Supreme Court’s requirement that actionable harassment, in the educational context, must be both severe and pervasive, not either-or.
Last year’s Guidelines also provided that "examples of harassing conduct includes epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, ethnicity, national origin, sex, sexual orientation, age, disability, marital status, or veteran status." (Emphasis added). That provision is clearly overbroad, since unless the listed examples rise to the level of severity and pervasiveness necessary to constitute harassment, they are constitutionally protected speech that the university may not ban. This year, the Guidelines were updated to provide that "examples of harassment may include epithets; slurs; negative stereotyping; or threatening, intimidating, or hostile acts that relate to race, color, religion, ethnicity, national origin, sex, sexual orientation, age, disability, marital status, or veteran status." (Emphasis added). The change from absolute to conditional language here is a significant improvement, since the policy no longer prohibits constitutionally protected speech across the board.
Given these very specific revisions clearly intended to address free speech issues with the Guidelines, it is surprising that the university left other equally unconstitutional policies untouched. For example, the policy on Student Rights and Responsibilities provides that
Sexual attitudes or actions which are intimidating, harassing, coercive, or abusive, or that invade the right to the privacy of the individual are not acceptable. Organizations or individuals that adversely upset the delicate balance of communal living will be subject to disciplinary action by the University
[E]xpressions and challenges need to be civil, manifesting respect and concern for others.
In addition, the university’s policy on use of its residential computing networks prohibits the use of "objectionable language" in e-mails, a broad and vague policy that would never pass constitutional muster.
The changes to this year’s Guidelines are a positive step towards protecting free speech on the University of Florida’s campus; we now challenge the university to go the distance by addressing the constitutional deficiencies in all of its speech codes.