June 2, 2010
Dr. Jane McAuliffe
Bryn Mawr College
101 North Merion Avenue
Bryn Mawr, Pennsylvania 19010-2899
Sent via U.S. Mail and Facsimile (610-526-7450)
Dear President McAuliffe:
As you can see from the list of our Directors and Board of Advisors, the Foundation for Individual Rights in Education (FIRE) unites leaders in the fields of civil rights and civil liberties, scholars, journalists, and public intellectuals across the political and ideological spectrum on behalf of liberty, legal equality, freedom of religion, academic freedom, due process, and, in this case, freedom of expression on America’s college campuses. Our website, www.thefire.org, will give you a greater sense of our identity and activities.
FIRE is deeply concerned about a policy in force at Bryn Mawr College that unconstitutionally restricts the speech rights of Bryn Mawr students.
Bryn Mawr’s harassment policy explicitly bans speech that would be protected by the First Amendment to the United States Constitution on a public university campus. The mere existence of the policy chills expression on Bryn Mawr’s campus and ignores First Amendment liberties that Bryn Mawr, as a college committed to protecting free expression, should uphold. Bryn Mawr’s harassment policy undermines the mission of an institution presumptively committed to intellectual rigor, robust debate, and a free and vibrant community. It is for these reasons that FIRE named Bryn Mawr’s harassment policy our "Speech Code of the Month" for May 2010, and we write you today to urge you to revise the policy immediately.
As published in Bryn Mawr’s Student Handbook, the college’s harassment policy states that "[i]t is the policy of Bryn Mawr College to maintain a work and academic environment free from discrimination and offensive or degrading remarks or conduct." The policy includes a list of "specific examples of behavior that are inappropriate," including "[n]egative or offensive comments, jokes or suggestions about another employee’s gender or sexuality, ethnicity or religion" and "[s]lang names, or labels that others could find offensive." (While the language here refers to employees, the policy explicitly states that it applies to "all staff members and faculty members as well as students.")
As a private institution, Bryn Mawr is not legally bound by the First Amendment to the United States Constitution. However, Bryn Mawr must honor promises made to students in recruiting materials, student handbooks, and the like, including promises of extensive speech rights. In a number of cases, courts have held that colleges and universities are contractually bound by these types of promises. See, e.g., Schaer v. Brandeis, 432 Mass. 474 (Sup. Ct. 2000); Tedeschi v. Wagner College, 49 N.Y. 2d 652 (Ct. App. 1980); McConnell v. Le Moyne College, 2006 N.Y. Slip Op. 256 (Sup. Ct. 2006).
Bryn Mawr explicitly claims to have a commitment to the free expression of ideas. For example, in its student handbook, Bryn Mawr states that a "climate of open and vigorous debate" is "essential to its educational mission." In spite of this promise, however, Bryn Mawr’s harassment policy violates Bryn Mawr students’ right to free expression for several reasons.
First, the policy relies on impermissibly vague formulations-namely, prohibiting speech that is "offensive" or "degrading," as well as "labels that others could find offensive"-that could, in application, mean virtually anything. A regulation is said to be unconstitutionally vague when it does not "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972). Exactly what speech constitutes actionable harassment under this policy can only be determined, in this context, by an entirely subjective judgment. Thus, no student seeking to ascertain precisely what speech is or is not forbidden could possibly determine what is actually prohibited by the terms of the policy.
Moreover, the policy is impermissibly overbroad. A statute or law regulating speech is unconstitutionally overbroad "if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate." Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). Even assuming that a student could figure out what speech is or is not "offensive," for example, the fact that a student may be sanctioned under the policy for offending another student means that engaging in wide swaths of constitutionally protected expression may serve as grounds for punishment. Indeed, most speech that a listener would find "offensive" or even "degrading" is nonetheless constitutionally protected. For example, satire and parody-which often feel humiliating to their targets-are some of the most stringently protected forms of expression. In Hustler Magazine v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court held that Hustler had a right to publish a satirical advertisement suggesting that the Reverend Jerry Falwell’s first sexual experience was a drunken tryst in an outhouse with his own mother-a suggestion that the Reverend Falwell undoubtedly found both embarrassing and degrading. Moreover, the Supreme Court has explicitly stated that "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) (emphasis added).
Likewise, the policy’s prohibition on "[n]egative or offensive comments, jokes or suggestions about another employee’s gender or sexuality, ethnicity or religion" covers a wide range of protected speech. For instance, many people have recently expressed strong feelings about the Catholic Church’s response to the priest sex abuse scandal. If such remarks offended a Catholic student at Bryn Mawr, the student or faculty member who made them could be charged with harassment for making negative comments about a particular religion. The policy therefore leaves students open to punishment for expressing their opinions on a wide range of social and political topics that should be discussed openly at an institution like Bryn Mawr.
Finally, Bryn Mawr cannot cure this policy’s deficiencies simply by classifying it as a prohibition on "harassment." The Supreme Court has set forth a strict standard for what constitutes peer harassment in the educational context, and only a policy that meets that standard adequately protects student speech. The standard, set forth in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) requires behavior to be "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit" in order to be considered actual harassment. Unfortunately, Bryn Mawr’s policy fails to include any requirement that the behavior in question be severe, pervasive, or objectively offensive. Instead, Bryn Mawr’s policy merely requires that the allegedly harassing behavior be "offensive or degrading." This less stringent standard falls well short of meeting the Davis threshold requirement. The policy therefore fails to guarantee sufficient security to expression protected under the First Amendment.
Outlawing "offensive" or "degrading" speech undoubtedly has a powerful chilling effect on expression at the college, undermining the entire purpose of the institution. Under this harassment policy, Bryn Mawr students are forced to walk on eggshells, rather than benefiting from the marketplace of ideas their college purports to be. If Bryn Mawr is to be an institution where intellectual inquiry can flourish, the chilling effect on expression engendered by Bryn Mawr’s flawed harassment policy must be addressed and eliminated.
To that end, we ask that Bryn Mawr revise its policy to be consistent with its own promises of free expression. To prevent speech at Bryn Mawr from being impermissibly chilled, we ask that you revise the harassment policy and clarify to students and administrators at the college that protected expression may never and will never be investigated or punished.
We request a response on this matter by June 23, 2010.
Director of Legal and Public Advocacy
Judy Balthazar, Dean of Studies, Bryn Mawr College
Karen Tidmarsh, Dean of the Undergraduate College, Bryn Mawr College
Samuel B. Magdovitz, College Counsel, Bryn Mawr College