Free Speech? Not At PSU, Group Says

December 24, 2014

By Debra Erdley at Pittsburgh Tribune-Review

Be careful what you say on campus.

A Philadelphia-based foundation that monitors free speech issues at colleges across the country claims that more than half of 400 plus colleges and universities it surveyed this year have adopted restrictive codes that violate First Amendment guarantees to free speech.

Penn State’s 2014 policy moved it to the top of the list, according to FIRE, the Foundation for Individual Rights in Education.

FIRE singled out the state’s flagship land grant school as its national “Speech Code” school of the month in December for a policy it deemed among the most egregious in the nation.

Penn State, which reviewed policies involving sexual misconduct following the Jerry Sandusky scandal, revised its sexual harassment policy and expanded it to include “verbal or physical conduct of a sexual nature that is unwanted, inappropriate, or unconsented to.”

FIRE officials said the language is so encompassing that a single off-color joke or comment could rise to the level of sexual harassment if anyone finds it inappropriate.

A Penn State spokesman said the school works to balance free speech rights with individual protections.

“Penn State is committed to both freedom of expression and the protection of our students and employees from harassment and intimidation. We firmly believe that our policies properly promote and protect both of these interests, which are at the core of the University’s mission,” Penn State spokesman Riedar Jensen said in an email.

Bruce Antkowiak, a law professor at St. Vincent College in Latrobe, said debates about the limits of free speech date to the enactment of the First Amendment.

“There is a long line of cases about when speech trends from being speech to being akin to walking up and slapping someone in the face. …There has never been a bright line. This has always been something that has adjusted itself to the passions of the moment,” Antkowiak said. He said the notion that words can be sexual harassment has been part of the law for some time.

FIRE officials said Penn State’s sexual harassment policy mirrors many adopted by colleges and universities in the wake of a 2013 agreement the University of Montana entered into with the U.S. Department of Education’s Office for Civil Rights. The agreement dubbed a “blueprint for colleges and universities throughout the country to protect students from sexual harassment and assault” included speech in its definition of sexual misconduct.

The Montana agreement, hammered out as scores of schools battled ongoing civil rights investigations for alleged violations of federal law in their handling of sexual violence or harassment complaints, spurred many to review their policies.

Samantha Harris, director of policy research at FIRE, said her agency is advising students on various options for attacking policies deemed overly restrictive of free speech rights.

“The courts are one place where students at public universities can challenge them,” Harris said, conceding that she knows of no pending legal challenges.

Other Pennsylvania schools FIRE ranked as having overly restrictive policies on free speech included California, Cheyney, East Stroudsburg, Indiana and West Chester universities and Franklin & Marshall College.

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