OUR OPINION: UND must reaffirm free speech, other rights

January 6, 2013

Look on the bright side: At least UND didn’t get scorched by FIRE as having the Speech Code of the Year.

Last week, FIRE — the Foundation for Individual Rights in Education — awarded that "honor" to two other schools, including Oakland University in Michigan. There, the school’s policy prohibits offending or disturbing anyone via phone or computer, "nor shall any person" use "immoral or insulting language" over those devices.

Oakland’s policy "illustrates perfectly the mock-Victorian sensibility that seems to underlie so many university speech codes, a sensibility according to which adult college students must not be exposed to anything ‘insulting’ or (gasp) ‘immoral,’" FIRE notes.

But in December, UND did get singed when FIRE identified the university as having the Speech Code of the Month. It’s a distinction that should make lovers of academic freedom burn with shame.

And as a result, UND — if it hasn’t already done so — should join the five schools among FIRE’s 12 "winners" of 2012 that changed their speech codes in response.

UND puts forth its policies in several different places, and FIRE took special exception to the Affirmative Action Office’s webpage on harassment and discrimination.

UND’s Affirmative Action Office is the place where formal complaints about harassment or unlawful discrimination at the university end up. So, it’s significant that when people go to the office’s website for information, they find harassment defined in part as "(u)nacceptable behavior, which can range from violence and bullying to more subtle behavior such as ignoring an individual at work or study."

The page goes on to note that harassment "can be a single explicit incident causing distress or repeated unacceptable behavior affecting the dignity of an individual that appears or feels offensive, demeaning, intimidating or hostile …"

The trouble with such statements is that — like most university speech codes — they take a term such as "harassment," which describes a narrow category of speech that’s not protected by the First Amendment, and stretch it to forbid all kinds of speech that is and should be protected.

So, UND’s policy describes even behavior that "appears or feels offensive" as harassment. But that’s light years away from the U.S. Supreme Court’s thinking.

As FIRE points out, the court in 1999 gave an "actual definition of peer harassment in the educational setting." It reads like this: Actionable harassment is conduct "so severe, pervasive and objectively offensive … that the victim-students are effectively denied equal access to an institution’s resources and opportunities."

The difference is stark, FIRE states:

"Far from requiring that harassment be ‘severe’ conduct, UND’s policy defines it broadly to include any conduct that subjects an individual or group to ‘offense’ or ‘ridicule.’ This directly contradicts not only the Supreme Court’s holding … but also decades of court decisions affirming that: ‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.’"

Furthermore, "a violation (at UND) can occur if the behavior ‘feels offensive’ or ‘demeaning’ to the person in question …

"As a result, UND students enjoy their free speech rights only at the mercy of the most sensitive members of the university community — a problem the court explicitly addressed when it required that harassment be not only severe and pervasive, but also ‘objectively offensive.’"

When FIRE confronted the University of Southern California and the University of North Carolina with their clearly unconstitutional speech codes, the universities did the right thing: They eliminated the codes, "thereby moving toward greater respect for student expression on their campuses," FIRE reports.

Now, it’s UND’s turn. Mindful of its checkered past — in 2011, the university’s Inspector Javert-like zeal in disciplining a student drew scathing national attention — UND should reframe its policies in ways that honor constitutional rights, thereby proclaiming the university’s wholehearted allegiance to robust debate, critical thinking and academic freedom.

Schools: University of North Dakota Oakland University University of Southern California University of North Carolina – Chapel Hill