Last week, FIRE released our annual Spotlight on Speech Codes report, sharing stats and trends from our database of campus speech codes, which are university policies that restrict student speech protected under First Amendment standards. This year unfortunately marked the first time in 15 years that the percentage of schools earning our worst, “red light” rating increased, a notable step backward.
Schools made the red light list — reserved for institutions with at least one policy that places a clear and substantial restriction on protected speech — for maintaining a variety of policies, but the number one culprit was regulations on harassment.
Harassment, properly defined, isn’t protected by the First Amendment. But colleges and universities too often stumble when defining “harassing” conduct, adopting policies so broad that just about any speech someone doesn’t like can be characterized as harassment and subjected to investigation or punishment on that basis.
One such school is the University of Texas at Dallas. UT Dallas’ Student Grievances policy primarily establishes procedures to govern how students can report alleged discrimination to campus officials. However, it also provides a definition of sexual harassment:
Sexual harassment is a form of sex discrimination. Such harassment is defined as unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.
Saying harassment is any unwelcome verbal conduct of a sexual nature is about as broad as it gets. Unlawful sexual harassment, to be sure, could be unwelcome verbal conduct of a sexual nature. But so could just about any sexual expression, from telling a single dirty joke to playing many of the songs on the Billboard charts.
Speech can’t be limited by the government, including a public university, just because someone thinks it’s sexual and doesn’t like it. (If it could, I’d consider asking my representatives to ban “Santa Baby,” a song I’ve always found creepy this time of year!)
UT Dallas’s policy says the full text of the university’s Sexual Harassment Policy and Procedure can be found elsewhere, in the university’s Administrative Policies and Procedures Manual. But the school shouldn’t provide one definition in one policy and expect students to head over to another policy for another definition — talk about confusing!
By providing this broad definition in official policy, the university suggests it can take action against any unwelcome sexual expression, and students are bound to interpret the policy that way and self-censor accordingly.
Instead, UT Dallas should ensure all definitions of student-on-student hostile environment harassment track the Supreme Court’s standard for peer harassment in the educational setting from Davis v. Monroe County Board of Education. And if other policies cross-reference the full sexual harassment policy, they should either provide that complete definition, or just say sexual harassment is defined in that other policy and provide a link.
If it were to do so, UT Dallas would move off the list of red light institutions, and would no longer land in the bottom 13% of public schools in our database. As always, FIRE’s Policy Reform team is available to help with policy revisions, free of charge.
If you’re wondering how other schools stack up in our speech code ratings this year, check out our report for the full listing of school ratings.