In an article in today’s Southern Illinoisan, Southern Illinois University–Carbondale (SIUC) Chancellor Samuel Goldman attacks FIRE for our recent letter challenging the university’s free speech zone. As we will be explaining here in detail on The Torch via several upcoming posts over the next several days, Goldman’s comments to the Illinoisan are fraught with errors, one of which in particular I would like to address here.
Goldman tells the Illinoisan that he is preparing a second response to FIRE, this one for "being placed on the organization’s ‘red light’ list for its proposed sexual harassment policy." While the proposed policy is indeed a problem, it is not the reason that SIUC receives a "red light" rating for its speech codes. As FIRE’s Director of Speech Code Research, I am happy to explain to Chancellor Goldman precisely why SIUC has earned a "red light" rating for maintaining at least one policy that both clearly and substantially restricts freedom of speech.
First, FIRE’s ratings are based on policies actually in force at a university, not draft policies, however deplorable they may be. (And in SIUC’s case, the proposed sexual harassment policy is certainly worthy of condemnation.) Second, SIUC maintains a number of speech codes that shamefully restrict student speech and earn it its "red light" rating.
SIUC’s Discriminatory Harassment policy provides that:
Discriminatory harassment includes, but is not limited to, conduct (oral, written, graphics or physical) directed against any person or group of persons because of race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran’s status that has the purpose of or reasonably foreseeable effect of creating an offensive, demeaning, intimidating or hostile environment for that person or group of persons. Such conduct includes but is not limited to objectionable epithets demeaning depictions or treatment and threatened or actual abuse or harm.
As an initial matter, this policy does not require that the conduct be severe or pervasive, as required by the U.S. Supreme Court to establish harassment in the educational setting. Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999). It doesn’t even require that the conduct actually create a hostile environment—rather, by SIUC’s definition, conduct that has the "purpose" of creating a hostile environment is harassment, whether or not the would-be harasser actually succeeds. Worse yet, the policy contains no reference to an objective "reasonable person" standard, meaning that SIUC students are at the mercy of the most sensitive members of the community when it comes to what constitutes harassment on campus. This has an unacceptable chilling effect on campus speech, and explicitly contradicts numerous court decisions regarding protected speech.
And that isn’t even the worst part of the policy. In addition to its overbroad definition of harassment, the policy outright prohibits protected speech, providing that discriminatory harassment includes any "objectionable epithets" and "demeaning depictions or treatment." As we have said on these pages too many times to count, speech cannot be prohibited simply because it is objectionable or demeaning! In fact, satire and parody—which often viciously demean their targets—are some of the most jealously protected forms of speech under the First Amendment.
To be clear: FIRE’s concern about poorly written harassment policies like the one in place at SIUC is more than just theoretical. Chancellor Goldman must know that flawed university harassment policies have repeatedly and consistently been struck down by federal courts over the past twenty years. In every case that has produced an opinion, harassment policies like SIUC’s have failed to withstand judicial scrutiny.
Just as clear is the fact that unconstitutional harassment policies are regularly abused by college administrators across the country to punish protected speech with which they disagree. FIRE’s case archives are unfortunately chock-full of the victims of this kind of abuse. Just ask student-employee Keith John Sampson, found guilty of racial harassment at Indiana University – Purdue University Indianapolis for reading a book celebrating the defeat of the KKK in a 1924 street brawl. (Check out our video about that shocking case.) Or former University of New Hampshire student Tim Garneau, who was found guilty of harassment and evicted from student housing after posting fliers joking that freshman women could lose the "Freshman 15" by taking the dormitory stairs.
The Discriminatory Harassment policy alone would be enough to warrant a Red Light, but SIUC also maintains unconstitutionally overbroad definitions of a "bias incident" and "hate speech," providing that a "bias incident" is any "act of conduct, speech or expression to which a bias motive is evident as a contributing factor." "Hate speech" is defined as "a description that perceives inferiority of the targeted group by denying or belittling their humanity." The university tells its students that "If you feel threatened or disrespected, you are a victim," and directs these "victims" to contact the university’s Diversity Office. As written, this policy is likely to have a serious chilling effect on campus expression, since it suggests that students may be subject to university action for "victimizing" other students through these types of speech. Some universities with similar "bias incident" policies have clarified that bias incidents and hate speech are not actually punishable, but rather provide opportunities for campus dialogue. If this is the case at SIUC, the university needs to be very explicit about that in its policy, because as it stands students are likely to believe that these types of protected speech are prohibited and censor themselves accordingly—an unacceptable outcome under the First Amendment.
These are the worst—but not the only—speech codes currently in force at SIUC. For a full listing, please visit FIRE’s Spotlight entry for SIUC.