Free Speech in Jeopardy

By July 29, 2013

Megan Zielinski is a FIRE summer intern. This piece will be featured in the Washington University Political Review August issue.The first section of the Washington University in St. Louis Judicial Code states that “freedom of thought and expression is essential to the University’s academic mission.” It continues to state that “nothing in this Code should be construed to limit the free and open exchange of ideas and viewpoints, even if that exchange proves to be offensive, distasteful, disturbing, or denigrating to some.” These bold statements describe the ideal college environment: open to discussions of any kind through which people can confront new ideas and learn more about their own viewpoints. I am proud to go to a university that has this grand mission, and I often find myself involved in just that type of deep conversation. Yet those of us who live in university housing face a severe threat to this freedom: the Office of Residential Life’s definition of harassment. ResLife defines harassment as “any behavior or conduct that is injurious, or potentially injurious, to a person’s physical, emotional, or psychological well-being, as determined at the sole discretion of the University.” This policy is inconsistent with the declaration of free speech in the Judicial Code. Though Wash U is a private institution and thus is not legally bound by the First Amendment, the statements in the Code represent a clear commitment to free expression that the university is obligated to fulfill. When universities promise certain rights to students in their official policies and materials, they must deliver those rights. The ResLife definition poses two major problems. Not only does the policy give administrators immense power by allowing them “sole discretion” to decide whether there has been a violation, but it is also substantially overbroad and vague. To get a grasp on where ResLife has gone wrong, we must turn to Supreme Court precedent. In 1999, the Supreme Court created the standard for student-on-student harassment in the educational setting, in Davis v. Monroe County Board of Education. In determining when a school may be held liable for ignoring harassment, the Court provided a definition of harassment: unwelcome, discriminatory conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Based on the ruling in this case, a student must be more than just rude or offensive for his behavior to be harassment. The Davis standard permits punishment for a pattern of behavior that involves speech or conduct so awful, persistent, and focused on someone’s status as a member of a protected class that the law can no longer treat it simply as speech but as discriminatory behavior that constitutes a civil rights violation. This standard leaves plenty of room for administrators to respond to speech that is truly harassing. Furthermore, Davis is the controlling legal standard for peer harassment in the educational setting. This case is the only one of its kind deliberated on by the Court, so its logic is what lower courts must use to decide cases with similar fact patterns. Indeed, federal courts have struck down many overbroad speech codes at public universities.   Through looking at the ways in which our policy differs from the standard set out by the Supreme Court, we can see how and why the Davis standard is the correct model for harassment and why we should revise the ResLife policy. One of the most important sections of this ruling that is ignored by ResLife is the “objectively offensive” requirement. Rather than considering a certain behavior from the subjective experience of a particular person, who might be very easily offended, courts look at the experience of reasonable men and women and how they would interpret certain conduct. This standard is used in many areas of law, from criminal to contract to tort law. By relying on this standard, the law is not set by the sensibilities of the most hypersensitive person in society but rather by a more objective standard. Beyond the legal requirements of this standard in court, many people would also find it a matter of common sense to have their behavior judged by an objective standard. ResLife does not even attempt to hide its removal of a reasonable person standard. It boldly states that harassment is “determined at the sole discretion of the University.” Not only is a mention of objectivity absent from the definition, but they give themselves complete authority to choose what behavior constitutes harassment. The university is bound by no principles, so individuals in ResLife are free to interpret statements however they want with no limits. One would hope that ResLife would use this power well, but we cannot rely solely on administrators’ goodwill. Equally importantly, the policy is exceptionally broad and disregards many of the requirements laid out in Davis. By defining harassment as “any behavior or conduct that is injurious, or potentially injurious, to a person’s physical, emotional, or psychological well-being,” ResLife has included a shocking amount of speech that is not harassment. By contrast, the Davis standard classifies harassment as only that conduct “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” This definition is much narrower and was carefully tailored to address only behavior that is truly harassing. ResLife has written a definition that is broad enough to encompass the everyday behavior of students. Take a moment to think about how many conversations and comments are just potentially injurious to a peer. Imagine two students talking in Bear’s Den about how easy an exam was, how they didn’t study at all, and that they left early because they knew they had an A. This conversation would seem harmless to most people, and I doubt many people would consider this conduct to be harassment. Now imagine a student standing behind them in line who studied for weeks for the same exam, struggled during the test, and is expecting a C at best after working until the last minute. I submit that overhearing this conversation is potentially injurious, if not actually injurious, to the student’s emotional well-being. The conversation certainly qualifies as harassment under the ResLife definition, yet it does not even come close to meeting the requirements of the Davis standard (or of common sense). This conversation would also clearly be protected by the university’s promise of “free and open exchange of ideas and viewpoints.” It is certainly possible that through using its sole discretion, the university would choose not to punish those students whose behavior would not be considered harassment by a reasonable person. Unfortunately, university administrators often abuse their power and punish students for speech that is completely protected, whether it be by the First Amendment in public schools or by a declaration of free speech in private universities. I spent my summer at FIRE, the Foundation for Individual Rights in Education, and it was an eye-opening experience. I encountered case after case in which students were punished for perfectly acceptable and constitutional conduct. In some cases even laughably constitutional remarks are vigorously pursued by the administration, and students find themselves in a great deal of trouble. Since FIRE’s founding in 1999, the organization has fought and won more than 250 cases across the United States. One case stands out as a perfect example of a situation in which a Wash U student might one day find himself. In 2007, Keith John Sampson, a student and employee at Indiana University-Purdue University Indianapolis, was reading a book about the Ku Klux Klan during a break from work. The book, titled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, chronicles the admirable efforts of Notre Dame students who defended their campus against the KKK in a 1924 riot. The cover features a picture of the KKK rally, including burning crosses. Unfortunately for Sampson, a co-worker was very upset by seeing this book, and she reported him to IUPUI’s Affirmative Action Office, which found him guilty of racial harassment without so much as a hearing, simply on the basis of the book’s cover.  It’s hard to picture a college campus where students are unable to learn about controversial topics. A college student should have the ability to pursue knowledge about our culture and history, despite the fact that some people might have emotional reactions to the material. There are surely descendants of Holocaust survivors who would be upset by a discussion of Nazis, but that should not preclude professors or students from talking about them. We have come to Washington University to enrich our minds in the company of exceptional peers. The discussions we have in classrooms and in dorm rooms should push us to the boundaries of our beliefs, and we will emerge with a better understanding of the ideas we agree with and those we don’t. Sometimes these conversations have the potential to upset or offend us, but in order to allow people freely to express their opinions so that we can learn from them, we must not hold the threat of punishment over their heads. If someone says something you think is offensive, tell them why you disagree. ResLife thinks that we need to be protected, even from things that are only “potentially injurious,” but we don’t need that. We are smarter and stronger than that.  Schools as prestigious as Penn and Dartmouth have eliminated their speech codes to open up their university to open dialogue and to facilitate learning. We should aspire to be like them and replace the harassment policy with one in line with the Davis standard.