Free speech advocates say OU violates 1st Amendment rights

February 27, 2009

Ohio University and President Roderick McDavis have been warned by the Foundation for Individual Rights in Education of the possibility of legal action if OU does not revise two policies the organization says violate the First Amendment.

In a report released by FIRE on Dec. 15, OU received a "red-light" grade, indicating the school has "at least one policy that both clearly and substantially restricts freedom of speech."

FIRE is a nonprofit organization that tracks alleged violations of free speech at colleges.

According to FIRE, OU’s sexual harassment policy and a section of the Student Code of Conduct that defines "mental or bodily harm to others" are worded in ways that prohibit constitutionally protected speech.

The third annual report issued red-light grades to 270 of the 364 schools studied.

After the report’s release, FIRE sent letters to the presidents of schools that received a red- or yellow-light grade, warning them they may be held personally liable.

The policies are legal and would hold up in court, and that threatening the president’s immunity as an agent of the state "is a bit of a scare tactic," said John Biancamano, OU’s director of Legal Affairs.

"People have the right to have different points of view," Biancamano said. "But if we’re comfortable that the policies are appropriate then we have nothing to worry about." He said OU has no plans to change the policies.

William Creeley, FIRE’s director of legal and public advocacy, said because the letters inform university presidents of the unconstitutional policies, they will be unable to claim immunity if sued.

"Administrators continue to enforce these codes at their own peril," Creeley said. "If they are entertaining policies that violate first amendment laws, they will not enjoy immunity."

McDavis received the letter on Dec. 30 and thanked the organization for its policy evaluation last week, said Becky Watts, chief of staff for the president.

FIRE does not take legal action itself but has compiled a network of lawyers to bring cases against unconstitutional policies.

Lawyers working with FIRE have won court cases against schools such as Texas Tech University, San Francisco State University and Temple University.

"In the 11 cases that have had decisions, we’ve seen that every time FIRE rates a red-light school, the court agrees." Creeley said.

Samantha Harris, FIRE’s director of speech code research, wrote the policy evaluation of OU and said both policies are worded too broadly.

Harris noted that the U.S. Supreme Court has defined harassment, in the educational context, as conduct "so severe, pervasive and objectionably offensive that it effectively bars the victim’s access to an educational opportunity or benefit."

OU’s current policy lists examples of sexual harassment, which include sexually explicit questions, jokes or anecdotes about gender-specific traits.

"The sexual harassment policy bans certain types of speech – such as sexually explicit jokes – outright, whether or not they rise to the required level of severity or pervasiveness," Harris said.

While Watts disagrees with FIRE’s analysis of the policy, she acknowledged the importance of having an effective harassment policy.

"Our policies are constantly changing to the world around us, but we do have the responsibility to create a supportive environment where students are free from harassment," she said.

According to the Office of the Ombudsman, there were 13 cases of sexual harassment at OU during the 2006-07 academic year.

With regard to prohibition of "mental or bodily harm to others" in the Student Code of Conduct, Harris said the concept of mental harm "could mean almost anything ranging from mere upsetness to a level of distress resulting in genuine dysfunction."

There were 130 reported cases of mental or bodily harm to others during the 2007-08 school year. Jim Sand, director of the Office of Judiciaries, said that there is no way to distinguish which cases were mental harm.

The code of conduct describes mental harm as an action that "demeans, degrades or disgraces any person."

Harris said that the code’s wording prohibits some expressions that could be found "demeaning" or that would make another person feel "disgraced" that are constitutionally protected speech.

Creeley said that 40 to 50 schools have responded to the letter, and that most have expressed interest in improving their policies.

"It’s not optional," Creeley said, "Either schools can voluntarily change their codes and work with organizations like FIRE, or they will end up facing direct judicial actions."

Schools: Ohio University