June 29, 2012
President Patrick T. Harker
Office of the President
University of Delaware
104A Hullihen Hall
Newark, Delaware 19716
Sent by U.S. Mail and Facsimile (302-831-1297)
Dear President Harker:
The Foundation for Individual Rights in Education (FIRE) writes you today because we are concerned about the threat to free speech posed by recent revisions to the University of Delaware’s Code of Conduct. The revised Code of Conduct contains a vague and overbroad definition of "bullying" that prohibits a substantial amount of constitutionally protected speech and expression. We understand that universities have come under pressure recently to address bullying on campus. But such efforts need not-and, at a public university like the University of Delaware, may not-infringe upon students’ First Amendment rights.
This is our understanding of the facts. Please inform us if you believe we are in error.
In the past year, the Code of Conduct’s prohibition of "disruptive conduct" was revised to include a prohibition of "bullying," which the university defines as follows:
Any deliberately hurtful behavior, usually repeated over time, with the desired outcome of frightening, intimidating, excluding or degrading a person. This includes, but is not limited to, physical assault, verbal abuse, teasing, ridiculing and spreading of rumors or private information about a person and may be done by any method of delivery, such as verbal, written or electronic.
By its plain language, this policy prohibits any "deliberately hurtful" verbal or written expression if such expression is aimed at "excluding or degrading" another person, including "teasing" or "ridiculing" another. But most such expression, however subjectively unpleasant it may be, is entitled to First Amendment protection, and therefore may not be prohibited at a public university. As the U.S. Supreme Court has written, "the mere dissemination of ideas-no matter how offensive to good taste-on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973). Indeed, parody and satire-which lie at the heart of the American free-speech tradition-often deliberately and ruthlessly mock their targets. See Hustler Magazine v. Falwell, 485 U.S. 46 (1988) (holding that the First Amendment protected a satirical advertisement implying that Reverend Jerry Falwell’s first sexual experience was "a drunken incestuous rendezvous with his mother in an outhouse").
While FIRE recognizes the university’s apparent desire to address "bullying" on campus, we remind UD that it is already required by law to prohibit the kind of harassing behavior apparently targeted by the new policy. Per federal laws prohibiting discrimination on the basis of race, color, national origin, sex, disability, or age by an educational institution, UD already bears a legal obligation to prohibit discriminatory harassment. Further, in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Supreme Court defined peer-on-peer harassment in the educational context as conduct that is "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." That is, students engaged in truly bullying behavior can already be disciplined under the carefully tailored standard the Court announced in Davis, which strikes the necessary balance between a public institution’s twin obligations to protect free speech and prevent harassment.
Other, related behaviors-such as invasions of privacy, true threats, and stalking-are also already prohibited under existing laws and university policies. Beyond such conduct, while the university is free to discourage offensive speech and expression that does not rise to the level of actual harassment or threats, it may not outright prohibit constitutionally protected speech simply because it hurts the feelings of college students.
The U.S. Court of Appeals for the Third Circuit, whose jurisdiction includes Delaware, has twice in recent years struck down public university speech codes for violating the First Amendment. In DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008), the Third Circuit struck down Temple’s restriction on "generalized sexist remarks and behavior," holding that the policy "provides no shelter for core protected speech" and concluding that "[d]iscussion by adult students in a college classroom should not be restricted." Perhaps even more on point, in McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010), the Third Circuit invalidated a policy that prohibited conduct causing "emotional distress." The court found the policy "entirely subjective" and noted that under this vague restriction, "[e]very time a student speaks, she risks causing another student emotional distress," resulting in a "heavy weight" that does "substantial" damage to free speech on campus. It is difficult to see how the University of Delaware’s bullying policy passes constitutional muster under either DeJohn or McCauley, both of which, again, are directly binding.
We hope that this situation can be resolved amicably and swiftly, and that the University of Delaware will immediately abolish this unconstitutional limit on freedom of expression. We request a response on this matter by July 20, 2012.
Samantha K. Harris
Director of Speech Code Research
Kathryn Goldman, Director, Office of Student Conduct