FIRE announces its Speech Code of the Month for March 2009: the University of Tulsa.
While the University of Tulsa is a private institution, it promises its students all of the same free speech rights they would have at a public university: "The University recognizes that students have the rights and privileges granted to all citizens in the Bill of Rights—specifically freedom of speech, freedom of assembly, and freedom of dissent." In order to keep this promise, the university must not prohibit speech protected by the First Amendment. Nevertheless, it does just that.
The University of Tulsa’s harassment policy contains all of the elements of a classic Speech Code of the Month—vagueness, overbreadth, and a hearty helping of rampant self-contradiction. In particular, it includes several seemingly conflicting definitions of harassment, plus a list of examples of harassment that includes protected speech. There are lots of points to discuss here, but let’s start with the contradictory definitions of harassment.
The first time the policy defines harassment, it’s in the context of sexual harassment, which it defines as:
"[A]ny unwanted or unsolicited sexual gesture, physical contact, or statement which, when viewed from the perspective of a reasonable person similarly situated, is offensive, threatening, humiliating, or interferes with a person’s ability to perform his or her job, educational pursuit, or participation in campus life." (Emphasis added).
This definition does not even come close to the actual, legal definition of harassment, which requires that conduct be "so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities." Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). This policy, by contrast, only requires that a reasonable person find the conduct "offensive"—a far cry from the truly hostile environment the law requires.
The policy also contains another definition of prohibited harassment:
Prohibited Harassment includes any conduct or behavior of an inappropriate nature where: … Such conduct has the purpose or effect of unreasonably interfering with an individual’s academic or work performance or of creating an intimidating, hostile or offensive working, educational or campus living environment.
This definition comes much closer to including only real harassment. While—significantly—it lacks the necessary requirements of severity and pervasiveness, it does at least require an actual hostile environment, rather than requiring only that someone be offended. However, there is no way for students reading this policy to know which definition of harassment will apply to their conduct. If I were a student at Tulsa, I would assume that any merely "offensive" speech—at least in the context of gender relations—was subject to punishment, and act accordingly. Making matters worse, the more "reasonable" of the two harassment definitions is immediately followed by a list of prohibited conduct that includes protected speech:
Some examples of Prohibited Harassment include, but are not limited to: … verbal or written comments or statements that are intimidating, threatening, demeaning, humiliating, sexually suggestive, insulting, vulgar, or lewd … inappropriate conversations of a sexual nature or similar jokes and stories, whether sexual or related to any actual or perceived status as set out at A.1 hereinabove … the inappropriate use or display of materials such as posters, photos, cartoons or graffiti that are demeaning or offensive … inappropriate comments, communicated by any means, that demean, intimidate, threaten or harm an individual’s reputation….
The policy does go on to provide that the reasonable person standard will govern whether these behaviors violate the policy, but even speech that a reasonable person would find "insulting," "vulgar," or "inappropriate" will not constitute harassment unless—as discussed earlier—it is severe and pervasive enough to actually create a hostile environment.
This policy, which is a mess of conflicting definitions and ambiguous wording, leaves students vulnerable to punishment not only for protected expression but for core political speech, which is at the heart of what the First Amendment protects. For example, the prohibition on "posters" or "photos" that are "offensive" could easily be applied to flyers advertising speeches by controversial speakers (such as happened in FIRE’s case at Cal Poly).
For these reasons, the University of Tulsa’s harassment policy is our March 2009 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please e-mail firstname.lastname@example.org with a link to the policy and a brief description of why you think attention should be drawn to this code. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.