The Flat Hat, the student newspaper at The College of William & Mary, points out this week that for yet another year, the university can boast of its “green light” rating for free speech. As The Flat Hat observes, William & Mary is one of an elite few institutions nationwide that maintain policies respecting free speech rights. Depressingly, 58.6% of the schools rated in FIRE’s Spotlight on Speech Codes 2014 report receive a “red light” rating for maintaining at least one clearly unconstitutional policy.
The article correctly notes:
The problem, for many schools, seems to be striking a balance between preserving free speech and protecting students’ wellbeing. Many speech codes were criticized by FIRE for restricting free speech in an attempt to curtail harassment.
Indeed, harassment policies, in FIRE’s experience, present one of the most frequent threats to First Amendment rights on campus. The article goes on to say, however, that “FIRE’s definition of harassment is ‘behavior so serious that it would interfere with a reasonable person’s ability to receive his or her education.’” This isn’t quite right, and it understates the seriousness of conduct that can be considered actionable harassment.
As the Supreme Court held in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), student-on-student harassment in the educational setting must involve conduct that is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This is a good deal more exacting than “behavior so serious that it would interfere with a reasonable person’s ability to receive his or her education,” and a significant range of speech that would reach the standard articulated by The Flat Hat would nevertheless be protected under the First Amendment. That’s why the elements of “severe,” “pervasive,” and “objectively offensive” conduct found in Davis are so important.
There’s also a rather unfortunate metaphor used in the article by William & Mary administrator Eric Garrison:
However, while the College ensures that students are free to exercise their First Amendment rights, it may not always be right or moral to do so. Garrison warns that words can be harmful and should be used with care.
“I can fire a gun into the air … [That] doesn’t mean it’s not going to hit somebody down the way. Was it intended? No. Did it cause harm? Absolutely. So, words are like bullets,” Garrison said.
The right to say something, of course, exists separately from the wisdom of saying it, and it does not confer a right on the speaker to be free of the social consequences of unpopular expression, as we’ve said before. But I can think of a lot of reasons why words are, in fact, not like bullets. For one, if one of my words should “hit” you, it’s not going to result in grievous bodily injury or death. While the metaphor isn’t apt, it does capture fairly well the mindsets of administrators known to cite the shootings at Virginia Tech or Columbine High School to justify censoring protected expression—as Colorado State University – Pueblo did recently.
All that said, I’m glad The Flat Hat is highlighting William & Mary’s green light rating this year, and I’m particularly glad for this quote from Chief Compliance Officer Kiersten Boyce:
“We and many other institutions do pay quite a bit of attention to this study and issues that may be raised by FIRE, which … makes me find it surprising that so many institutions have not made much progress in getting out of the red zone.”
We greatly appreciate Boyce’s attention, and of course we’re happy to let the country know that William & Mary’s policies are in full compliance with the First Amendment. Hopefully more college administrations will follow Boyce’s lead in years to come. As always, we’re ready to help.
Image: Wren Building, College of William and Mary – Wikimedia Commons