Eastern Michigan Stands By Speech Code, Defying Legal Clarity

July 12, 2012

Despite months of appeals from FIRE, Eastern Michigan University (EMU) does not appear inclined to take its legal obligations under the First Amendment, as a public university, seriously. The university is simply not willing to revise a sexual harassment so clearly unconstitutional that FIRE named it our Speech Code of the Month in July 2011—let alone to revise its other speech codes restricting campus discourse. This is a shame for students at EMU wishing to exercise their right to free speech without fear of administrative reprisal.

EMU’s Student Conduct Code policy on “Sexual Misconduct/Sexual Harassment” states, in relevant part:

Conduct of a sexual nature that creates an intimidating, hostile or offensive campus, educational or working environment for another person. This includes unwelcome sexual advances or requests for sexual favors, inappropriate sexual or gender-based activities, comments or gestures, or other forms of verbal or physical conduct or communications constituting sexual harassment. (Emphasis added.)

FIRE named this policy our Speech Code of the Month last July due to its severe restriction of students’ expressive rights. As Sam wrote at the time:

This policy’s prohibition on “inappropriate sexual or gender-based … comments” means that virtually any speech relating in any way to gender is subject to punishment if it offends a member of the campus community and EMU officials deem it “inappropriate.” Issues of sex and gender are frequently the subject of discussion and debate at a university—both within and outside of the classroom—and this broad restriction seriously endangers the kind of open debate that should define a university.

Not only that, but the policy fails to define “inappropriate” in any way, leaving students guessing what an administrator or fellow student may consider to be “inappropriate.” This flaw renders the policy unconstitutionally vague under binding federal precedent right in EMU’s backyard. In Doe v. University of Michigan,  721 F. Supp. 852, 867 (E.D. Mich. 1989) the court held that the University of Michigan’s discriminatory harassment policy unconstitutional in part because “[s]tudents of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy.” Just as the federal district court in Doe found that student expression, both inside and outside of the classroom, was likely to be chilled by the vague speech code at issue, EMU’s unconstitutional policy likewise creates a harmful, pernicious chilling effect on campus discussion. Again, this ruling is from from the federal district court for the Eastern District of Michigan—one would think Eastern Michigan University would be aware of this case.

Given the harm this restriction does to what is supposed to be the quintessential “marketplace of ideas,” we wrote to EMU in November 2011—as we do with all of our Speech Code of the Month schools—alerting the university that with one policy revision it could take a swift and major step toward protecting students’ freedom of speech. FIRE always hopes that this type of advocacy will bear fruit, as it in fact did with both of the universities named as our Speech Codes of the Year in 2011. (You can see the other schools that revised their policies after earning Speech Code of the Month “honors” in 2011, as well as in previous years.)

Unlike those universities, however, EMU chose to dig in, writing back in December 2011, in pertinent part, that “The University has every right to establish reasonable standards of conduct that govern its community regardless of whether the conduct rises to the level of that which violates civil or criminal law.” (Emphasis added.)

Given the broad sweep of this statement, we wrote back in January of this year to point out that while EMU may certainly enact “reasonable standards of conduct” for its students as long as they are clearly aspirational, it may not, consistent with its obligations under the First Amendment, enact regulations carrying the weight of disciplinary force that infringe upon constitutionally protected speech. Thus, EMU’s argument that it could define policy violations “regardless of whether the conduct rises to the level of that which violates civil or criminal law” (including, necessarily, peer harassment law as defined by binding Supreme Court precedent) was essentially a non-starter.

Unfortunately, EMU has failed to respond to this letter, or to a follow-up letter we sent in April. If you’re scoring at home, that’s three letters we have written about one clearly unconstitutional policy, a policy that EMU should be able to fix without much effort. At this point, the ball is in EMU’s court—though the university has not given us much reason to hope that it is inclined to revise this or any of its other speech codes. But we’ll give it one last try. Here goes.

As we’ve told EMU multiple times now, universities can set various student conduct standards as long as they make them clearly aspirational; for a good example of how to do so, EMU should check out Pennsylvania State University’s “Penn State Principles,” which state, in relevant part:

The Penn State Principles were developed to embody the values that we hope our students, faculty, staff, administration, and alumni possess. At the same time, the University is strongly committed to freedom of expression. Consequently, these Principles do not constitute University policy and are not intended to interfere in any way with an individual’s academic or personal freedoms. We hope, however, that individuals will voluntarily endorse these common principles, thereby contributing to the traditions and scholarly heritage left by those who preceded them, and will thus leave Penn State a better place for those who follow. (Emphasis added.)

It is easy for any reasonable reader of this policy to recognize that Penn State does not intend to attach disciplinary action to the values it encourages through the policy. Another good example is the University of Virginia’s “Bias Reporting Web Site,” which makes clear that “Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation.” EMU just needs to follow this template, and it is free to encourage various institutionally preferred values among its student body.

Secondly, EMU needs to understand that the Supreme Court has set forth a precise standard for what constitutes peer harassment in the educational setting—and that “inappropriate sexual or gender-based … comments” is a far cry from that standard. This too we have told EMU repeatedly. The Supreme Court has established that speech loses protection and becomes actionable peer harassment only when it is (1) unwelcome, (2) discriminatory, (3) on the basis of gender or another protected status, such as 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.” Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). The Davis standard not only maximally protects students’ speech rights while addressing schools’ obligations under harassment law, it is also, as the Supreme Court’s only pronouncement on the issue of peer harassment, legally binding on universities such as EMU.

Hopefully, Eastern Michigan University is willing to listen here, because the solution really is simple, and it would go a long way toward improving the university’s free speech record. All EMU needs to do is (1) employ the Davis standard, in all of its elements, to maximally protect student speech, and (2) make any policy espousing “values” that encroach upon free speech clearly aspirational. Once it does those things, we can move on to EMU’s other speech codes.

Schools:  Eastern Michigan University