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Marshall looks at free speech policies

February 1, 2011

CHARLESTON, W.Va. — Marshall University plans to take a "hard look" at its speech policies after a Philadelphia-based foundation criticized the school for having outdated, restrictive rules.

Last month, the Foundation for Individual Rights in Education, or FIRE, gave Marshall its "Speech Code of the Month" designation for what foundation official Samantha Harris says are restrictive speech codes that prohibit a "staggering amount of constitutionally protected speech."

The organization’s mission is to defend free speech rights, legal equality, religious freedom and due process rights on American college campuses, according to its website.

Last week, FIRE President Greg Lukianoff named Marshall as one of "The 12 Worst Colleges for Free Speech" on The Huffington Post website.

The foundation did not turn their attention toward Marshall after any particular actions or cases that occurred on campus, but for the university’s actual policies, said Robert Shibley, the group’s senior vice president.

"If we are restricting free speech, we’re going to take a hard look at it and not take it lightly," said Steve Hensley, dean of student affairs at Marshall.

On Monday, Hensley met with other members of a student conduct and welfare committee to talk about free speech issues.

Meanwhile, Student Judicial Officer Lisa Martin is attending a conference of the national Association of Student Judicial Affairs, where she’s asking whether other colleges and universities are amending their student codes of conduct, Hensley said.

Administrators at Marshall are not against amending their code, but want certain safety protections to remain in place, he said. For instance, an ex-boyfriend would not be allowed to follow or incessantly call, text, e-mail or otherwise harass his former girlfriend, and then hide behind his right to free speech, he said.

Students also are not allowed to make remarks in class that disrupt the learning environment, he said.

Hensley defends a case from last spring, where one male student was sanctioned and required to perform community service. Members of the Lambda organization, a group friendly to lesbian, gay, bisexual and transgender students, wrote a message in chalk on campus that announced an upcoming meeting.

The student saw the chalk and "defaced and erased" Lambda’s message by writing a slur against gays.

"We disagreed with him philosophically and he thought his rights were being denied and we didn’t think they were being denied," Hensley said.

The student did not simply write his own message — which would probably be considered free speech — but defaced Lambda’s chalk message, he said.

To Shibley, FIRE would not have intervened in such a case because the student did not have the right to alter Lambda’s message. The case is similar to hecklers who try to shout down a speaker, which restricts that speaker’s free speech.

In another case at Marshall, a student was asked to stop wearing a Jason Vorhees-style hockey mask, popularized in the "Friday the 13th" movies, around campus. The mask frightened several students, Hensley said. The student said his free speech was being denied, and Hensley ended up having a "rather unpleasant conversation" with him.

Shibley agreed that wearing a hockey mask around all the time is "pretty odd behavior," but said schools don’t need speech codes in place to approach the student and ask him to remove the mask.

In that situation, Hensley said, Marshall officials actually cited an old state law that restricts people from covering their faces with a mask, except for in bad weather or during holidays such as Halloween. The old code dates back to years when the Ku Klux Klan was prevalent in West Virginia.

In January, Harris wrote about Marshall on FIRE’s website. She cited specific violations of Marshall’s Code of Student Rights and Responsibilities that students might commit. They include acts exhibiting "prejudice and/or racism," acts toward another person that intend to frighten, coerce or demean the person, "incivility or disrespect" of other people and lewd, indecent or obscene conduct or expression.

"The problem is that nobody really agrees on what is uncivil or disrespectful," Shibley said.

Harris wrote that Marshall’s code would allow students to be punished for disrespecting someone, telling a crude joke, or showing prejudice by taking a stance on a controversial political or social issue.

"This policy covers so much speech that it seems there is very little speech for which Marshall University can’t punish you," Harris wrote.

As a public university, Marshall could be held liable if school officials punish a student and cites an unconstitutional speech code, Shibley said.

"Potentially, we could be saving Marshall a lot of money too," he said.

Marshall is one of about 280 colleges or universities that FIRE placed on the "red light" list for its policies and actions regarding protected speech. West Virginia University also received a "red light." Many others schools have received "yellow lights" for better practices, yet only 13 nationwide received "green lights."

To reach that distinction, Shibley said it’s important to take a close look at the school’s existing codes, and not allow rules where students could be disciplined for just disagreeing.

He said Monday’s meeting at Marshall is "a good first step."

"FIRE would love to help them out," he said. "We’re always looking for another school to go green."

Schools: Marshall University