Today, FIRE sent a letter to the Board of Regents of the University of Wisconsin System urging reform of a policy that contains language explicitly declared unconstitutional by a federal court. Two groups of UW faculty, led by UW-Madison professor Donald Downs and UW-Stout professor Timothy Shiell, sent their own letters under separate cover echoing FIRE’s concerns.
Language from Board of Regents’ Policy 14-6, the "Racist and Other Discriminatory Conduct Policy," was adopted as a systemwide rule in 1989, but it was quickly ruled unconstitutional in The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991). In UWM Post, the federal district court held that
"[c]ontent-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands." (The rule prohibited, among other things, "demeaning remarks" on the basis of "race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age," if their purpose was to create a hostile environment.)
While the Board repealed the systemwide rule derived from Policy 14-6 after the court’s decision, it retained Policy 14-6 itself, which directs each individual UW institution to adopt a policy addressing racist and discriminatory conduct. To assist institutions, Policy 14-6 provides a definition of discriminatory conduct and purported examples of discriminatory conduct, both of which are substantively identical to the language struck down in UWM Post. Specifically, both 14-6 and the now-discredited policy it accompanied prohibit conduct that intentionally demeans an individual’s race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry, or age and that creates an intimidating, hostile, or demeaning environment for that individual. Moreover, both state that examples of such conduct include name calling, slurs, or jokes.
In response to Policy 14-6’s suggested language, a number of the UW campuses—including UW Oshkosh, UW River Falls, and UW Superior—have adopted discriminatory harassment policies that either explicitly include Policy 14-6’s unconstitutional definition or incorporate it by reference.
While each UW campus administration is individually responsible for ensuring that its policies are consistent with the First Amendment, it is clear that a substantial number of the unconstitutional discriminatory harassment policies in force on UW campuses are directly attributable to Regents’ Policy 14-6. As a result, FIRE has asked the Board of Regents to revise the portions of the policy that contain language struck down in UWM Post and to notify all member institutions of the change. We have asked for a response to our letter by the end of next month, and we will keep Torch readers posted on any developments.