A couple of weeks ago, I reported on an e-mail conversation that Gregory Germain, the self-styled "independent prosecutor" in FIRE’s case at Syracuse University College of Law, had with me and with FIRE supporter David Ross. In the case, Germain is prosecuting law student Len Audaer because of satirical expression on an anonymous blog named SUCOLitis, which is like The Onion and satirizes life in law school. Professor Ross and Professor Germain continued their conversation—you can find the latest over at Popehat—but I wanted to point out this gem from Professor Germain:
Mr. Ross seems to believe that all terms like "harassment" need to be defined with mathematical precision to be valid. [FIRE note – Dr. Ross is a mathematics professor.] That’s just not a correct statement of how the law works. Harassment is an English word with a well understood standard usage and meaning. While it may be defined in specific ways in some codes, a rule can also use a term for its standard English meaning. That is how the law school has chosen to use the term. It may not satisfy a mathematician’s desire for absolute clarity, but it doesn’t have to do so. Of course, any student charged with a violation of our student code is free to advance the views of Mr. Ross in his defense, and it will be up to the hearing panel to determine whether the word "harassment" is so vague as to give no indication of what conduct might constitute a violation.
Unfortunately for Professor Germain, he doesn’t have so much discretion to make up a definition of harassment, since Syracuse University does actually define what harassment is, like most universities do. We pointed this out in our letter of October 25, 2010:
The Code of Student Conduct bans harassment under very strict definitions in two different locations. The code at first defines harassment as follows:
Harassment, whether physical or verbal, oral or written, which is beyond the bounds of protected free speech, directed at a specific individual(s), easily construed as "fighting words," and likely to cause an immediate breach of the peace. [Emphases added.]
Later in the code, the Computing and Electronic Communications Policy provides a second definition of harassment:
Harassment: Harassing others by sending annoying, abusive, profane, threatening, defamatory or offensive messages is prohibited. Some examples include obscene, threatening, or repeated unnecessary messages; sexually, ethnically, racially, or religiously offensive messages; continuing to send messages after a request to stop; and procedures that hinder a computer session. [Italics added.]
Satirical blog posts (which are not "sent" but rather must be sought out by readers) do not come close to meeting either standard under any reasonable reading of these policies.
The Code of Student Conduct also bans sexual harassment, invoking federal and state law and interpretations by the Office for Civil Rights of the U.S. Department of Education (OCR). Syracuse should note that the misinterpretation of federal harassment law by colleges and universities had become so rampant that on July 28, 2003, OCR Assistant Secretary Gerald A. Reynolds issued an open letter to all college and university presidents in the United States that clarified the relationship between harassment law, federal regulations, and the First Amendment. Secretary Reynolds wrote:
[I]n addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment under the statutes enforced by OCR … Some colleges and universities have interpreted OCR’s prohibition of "harassment" as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR’s jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive.
Specifically, the Supreme Court has defined student-on-student harassment as conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) (emphasis added). By definition, this includes only extreme and unusually repetitive behavior-behavior so serious that it would prevent a reasonable person from receiving his or her education. For example, in Davis, the conduct found by the Court to be actionable harassment was a months-long pattern of conduct including repeated attempts to touch the victim’s breasts and genitals and repeated sexually explicit comments directed at and about the victim.
To be clear: Discriminatory harassment, properly understood and as defined by the Supreme Court, refers to conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of gender or another protected status, like race; (4) directed at an individual; and (5) "so severe, pervasive, and objectively offensive, and … [that] so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." Id. at 652. Again, under any reasonable reading of this exacting legal definition, the blog entries in question do not constitute harassment and are thus instances of protected speech. Syracuse’s Code of Student Conduct specifically only prohibits harassing speech that is "beyond the bounds of protected free speech." Given that the Supreme Court has clearly defined the boundary separating protected speech from actionable harassment in the educational context, Syracuse may not selectively ignore this definition in choosing to prosecute a student for harassment.
The satirical material on SUCOLitis comes nowhere near the level of severity or pervasiveness that that would justify a sexual harassment charge against anyone responsible for the expression.
Well, I guess since Professor Germain has made up his own ideas of due process and free speech, he thinks he can get away with his own definition of "harassment," too. What a shame for a law professor.