FIRE announces its Speech Code of the Month for April 2010: The Claremont Colleges in California.
The five Claremont Colleges—Pomona, Scripps, Harvey Mudd, Claremont McKenna, and Pitzer—share a policy entitled The Claremont Colleges Communication Protocol for Bias Related Incidents (linked here from Scripps' website). The protocol contains all sorts of directions for what must happen in the event of a bias related incident on any of the five campuses, including communication among administrators at all five schools and, frequently, dissemination of notice of the incident to the entire student body.
The protocol defines "bias related incidents" as "expressions of hostility against another person (or group) because of that person's (or group's) race, color, religion, ancestry, age, national origin, disability, gender or sexual orientation, or because the perpetrator perceives that the other person (or group) has one or more of those characteristics." The protocol adds that "the term 'bias related incident' is limited to conduct that violates one or more of the Claremont colleges' disciplinary codes and which is not protected by the First Amendment of the United States Constitution or by analogous provisions of state law." This is confusingly contradictory, since most "expressions of hostility" are entirely protected by the First Amendment unless the expression rises to the level of, for example, harassment or true threats.
The contradiction becomes only more apparent when one looks at how the policy has been applied over the years.
In February of 2008, during the contested Democratic primary between Hillary Clinton and Barack Obama, someone wrote "Hillary is a foxy lesbian" on a student's erasable whiteboard in the residence halls at Harvey Mudd College. The comment triggered the bias incident protocol, pursuant to which Harvey Mudd College Dean of Students Jeanne Noda e-mailed all students about the incident, writing:
It seems that the student residents wrote this message as part of a joke, without thinking about the impact it might have on others. It refers to a prominent public figure. The message has been erased. Campus Safety has been notified.
In November of 2008, the protocol was triggered by an advertisement for a "Wild Wild West" party at Claremont McKenna College featuring a picture of Jesus holding a beer and a cigarette, with the caption, "Where is the one who has been born King of the Jews? We saw his star in the West and have come to party." Yet another incident involved a penis drawn in chalk on an outdoor area of Harvey Mudd's campus.
It is beyond question that a one-time off-color comment about Hillary Clinton in the midst of her presidential campaign, a flyer depicting a drinking, smoking Jesus, and a drawing of a penis are all examples of protected expression. So, the Claremont Colleges are either knowingly applying their policy to protected expression despite the policy's own language, or they are trying to claim that clearly protected expression is unprotected.
It brings to mind the question that many defendants dread hearing on cross-examination: were you lying then, or are you lying now? Students at the Claremont Colleges who believe in the value of free expression would do well to ask.
For this reason, the Claremont Colleges' Communication Protocol for Bias Related Incidents is our April 2010 Speech Code of the Month. If you believe that your college's or university's policy should be a Speech Code of the Month, please e-mail email@example.com with a link to the policy and a brief description of why you think attention should be drawn to this code. If you are a current college student or faculty member interested in these issues, consider joining FIRE's Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE's Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.