This week, a “Bias-Free Language Guide” posted on the University of New Hampshire’s (UNH’s) website made its way around the Internet and was ruthlessly mocked by the masses before UNH decided to remove it. Although the document explicitly was not intended to be a list of words punishable by the university, online commenters suggested that the list of “problematic” words was overly broad. The Guide discouraged community members from using the words “American,” “homosexual,” “overweight,” “rich,” and dozens of others.
In response, UNH President Mark Huddleston posted a statement on the UNH website Wednesday afternoon affirming the university’s commitment to freedom of expression. Huddleston wrote that he is “troubled” by the Guide, and stated that he wanted “to make it absolutely clear that the views expressed in this guide are NOT the policy of the University of New Hampshire.” He continued, “The only UNH policy on speech is that it is free and unfettered on our campuses.”
Huddleston’s clarification that the Guide wasn’t meant to be a speech code is nice to see—after all, any restriction on the kind of language covered in the Guide would be flatly unconstitutional at a public university like UNH. But UNH’s written policies tell a different story. Anyone browsing FIRE’s Spotlight database can see that Huddleston’s characterization of UNH policy is flatly incorrect. Huddleston apparently overlooked UNH’s red light policy and five yellow light policies, as detailed on FIRE’s website. Red light policies clearly and substantially restrict protected expression, while yellow light policies are vague and can too easily be used to punish or censor protected expression.
Let’s take a look at that red light policy, which covers sexual harassment:
Sexual harassment is unwanted and unwelcome behavior, or attention, of a sexual nature that interferes with your life. Sexual advances, forced sexual activity, statements about sexual orientation or sexuality, requests for sexual favors, and other verbal or physical conduct of a sexual nature all constitute sexual harassment. The behavior may be direct or implied. Sexual harassment can affect an individual’s work or school performance, and can create an intimidating, hostile, or offensive environment.
Torch readers will likely recognize that the policy’s definition of sexual harassment falls far short of the Supreme Court’s standard as set forth in Davis v. Monroe County Board of Education (1999). Most critically, it lacks any requirement that the “behavior” or “attention” be objectively offensive. Without this requirement, expression on campus can be limited to the tastes of UNH’s most sensitive student.
Yet more remarkable is the fact that, according to the policy, “statements about sexual orientation or sexuality,” or indeed any verbal conduct of a sexual nature, “all constitute sexual harassment.” The policy does not say that those types of speech could constitute sexual harassment if they interfere with someone’s ability to receive his or her education, but simply that they do constitute sexual harassment.
UNH might as well just write, “All sexual activity and sex-related speech is prohibited.”
Even if one imputes an “unwelcomeness” requirement to those examples, they fail to comport with common sense, never mind the First Amendment. To start, if unwelcome sexual advances, broadly speaking, are sexual harassment, how is one supposed to ever obtain consent for sexual activity? No one can know for sure in advance whether his or her interest in a person will be reciprocated. Depressingly, UNH is not the first university to trip over itself and accidentally ban all sex in its attempt to target harassment. Last year, the University of Missouri’s Title IX coordinator told students that “[r]equesting another person to engage in ... sexual behavior” would “not be tolerated.”
But more importantly for the functioning of the university, the policy could be used to punish students for an immeasurable range of constitutionally protected speech. Statements about sexual orientation or sexuality, for example, are a necessary part of discussions on many matters of public concern. After all, it was only five weeks ago that the Supreme Court handed down its historic ruling on same-sex marriage. Someone might not want to hear about it, and an especially sensitive person might feel that the discussion “interferes with [his] life” in some way, but that does not make related speech unprotected by the First Amendment.
To borrow a line from President Huddleston’s statement, “It is ironic that what was probably a well-meaning effort to be ‘sensitive’ proves offensive to many people, myself included.”
With UNH maintaining one red light policy and multiple yellow light policies, it is simply not true that, as Huddleston claimed, “[t]he only UNH policy on speech is that it is free and unfettered on our campuses.” If he believes that speech should be free and unfettered at UNH, FIRE would be happy to work with him or other UNH administrators to craft policies that truly protect student expression. Last year, we worked with UNH’s New Hampshire neighbor Plymouth State University, which now earns a “green light” rating from FIRE. We sincerely hope Huddleston takes the steps necessary to make his statement true and bring UNH in line with its obligations under the First Amendment.