May 31, 2012
Chancellor Nancy L. Zimpher
State University of New York
Office of the Chancellor
State University Plaza
Albany, New York 12246
Sent via U.S. Mail and Facsimile (518-320-1560)
Dear Chancellor Zimpher:
I write today to follow up on the Foundation for Individual Rights in Education’s (FIRE’s) letter to you on March 5, 2012, regarding the State University of New York (SUNY) system’s policy on campus "bias incidents." FIRE is disappointed to have to write to you a second time about this matter and to have received no response despite our letter’s March 26 deadline. By continuing to maintain this systemwide policy in spite of its clear unconstitutionality, several SUNY institutions are engaged in an ongoing violation of their students’ First Amendment rights—which, as public universities, they are of course legally bound to uphold.
Most centrally, the policy prohibits "acts of bigotry" based on a number of listed traits and characteristics, despite the fact that most "bigoted" speech is protected under the First Amendment and that the vague, stand-alone term "acts of bigotry" fails to adequately apprise students of their speech rights. As we wrote previously, while many individuals may find "bigoted" speech to be offensive and disagreeable, that alone is not a constitutionally sound basis for censoring or punishing its expression at a public university.
In addition, the policy prohibits "acts of … harassment [and] intimidation" without defining either term at all, when both harassment and intimidation have precise legal meanings that protect against intrusion into First Amendment territory. We discussed the exacting, speech-protective standards for both student-on-student (or peer) harassment and intimidation in our first letter, attached again here. However, in FIRE’s experience, peer harassment is the most commonly abused rationale for punishing protected student speech on college campuses. Indeed, our case archives are littered with instances of colleges and universities abusing the doctrine of peer harassment to impermissibly restrict campus discourse. As such, the SUNY schools’ failure to provide a speech-protective definition—or any definition at all—of "harassment" and "intimidation" constitutes an ongoing threat to students’ speech rights.
Of course, SUNY schools have the right to encourage students to refrain from "bigoted" language. However, in doing so, SUNY institutions must make clear that these encouragements are solely aspirational and do not carry the threat of disciplinary action. For a good example of how the SUNY schools can promote preferred institutional values while respecting their students’ First Amendment rights, I urge you to review the introduction to Pennsylvania State University’s "Penn State Principles." That introduction reads:
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. [Emphases added.]
Conversely, the SUNY systemwide policy contains no such clarification, leaving students under the reasonable impression that they are subject to punishment for violating its terms.
It is similarly possible to encourage students to refrain from engaging in "bias incidents" on campus, again without threatening disciplinary action in violation of their free speech rights. For a good example of a campus bias incident policy that makes its aspirational nature clear, take a look at the University of Virginia’s "Bias Reporting Web Site," which states, in pertinent part:
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, "For here we are not afraid … to tolerate error so long as reason is free to combat it." However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers. [Emphasis added.]
By placing a similar statement of clarification in their individual policies, the SUNY institutions can make clear to students that they will not be unduly investigated or punished for engaging in constitutionally protected speech.
I urge you to work with the individual SUNY institutions to correct the flaws in the systemwide policy regarding bias incidents. In one fell swoop, you would be able to remedy a number of the speech codes currently in place within the SUNY system. The result would be a benefit for the expressive rights of students throughout the system, as well as a reduction in litigation risk from students who might find their protected expression unconstitutionally punished.
Thank you once again for your attention and sensitivity to these concerns. Of course, FIRE stands ready to assist you with the necessary policy revisions. Given the important nature of these matters, we request a response by June 21, 2012.
Associate Director of Legal and Public Advocacy
Harvey G. Stenger, President, Binghamton University
George M. Philip, President, University at Albany
John R. Halstead, President, State University of New York-Brockport
Dennis L. Hefner, President, State University of New York-Fredonia
Donald P. Christian, President, State University of New York-New Paltz
Satish K. Tripathi, President, University at Buffalo
Cornelius B. Murphy, Jr., President, State University of New York College of Environmental Science and Forestry