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Speech Code of the Month: University of South Dakota

FIRE announces our Speech Code of the Month for June 2017: the University of South Dakota.

Not only are USD’s “Guidelines for the Awareness and Prevention of Acts of Cultural Insensitivity and Bullying at USD” written in a tone more appropriate for schoolchildren than adult college students, they also make clear that protected speech may be subject to punishment at the university.

According to the guidelines:

Two critical issues that lead to a negative climate for and experience of diverse students are cultural acts of insensitivity and “bullying.” Making fun of or degrading individuals and the groups to which they belong is considered an act of cultural insensitivity. Bullying is defined as unwanted, aggressive behavior that is repeated, or has the potential to be repeated, over time. Bullying is repeated, deliberate and disrespectful behavior that has the intent of hurting someone else. Teasing, making fun of, laughing at or harassing someone over time is bullying. Bullying hurts, creates a negative climate and can disrupt another student’s ability to function, sleep, concentrate and to be academically successful.

The tone of these guidelines is, to put it mildly, paternalistic. University administrators are not doing students any favors by addressing them in much the same way that an elementary school principal might address his or her pupils. Nonetheless, the university would be within its rights to do so — however misguided it might be — if this document were purely aspirational.

Unfortunately, the guidelines don’t simply encourage students to be polite and civil. Rather, the specifics of the guidelines make clear that students at USD can, in fact, face punishment for constitutionally protected speech and expression.

For example:

Using university property (i.e. the USD Internet server) to bully other students (cyber
bullying) or express feelings of hatred via Facebook, Twitter, email or other
forms of social media is not allowed per university policy that governs the use of USD resources and facilities. (Emphasis added.)

As a public university bound by the First Amendment, and as an institution that promises to “ensure the rights of free speech and expression,” USD cannot prohibit students from expressing feelings that administrators subjectively view as “hatred,” most of which are entirely constitutionally protected.

The guidelines also make clear that “teasing” or even “laughing at” another person “can lead to disciplinary action by the university.”

Instead of cultivating independence and resilience, too many universities are cultivating precisely the opposite, encouraging students to turn to their administrations — the “adults” in charge, despite the fact that most students are themselves adults — every time someone hurts their feelings. Even when these policies do not explicitly call for punishment, they have a troubling impact on free and open discourse on campus by encouraging students to seek some sort of official university response rather than responding to speech they don’t like with more speech of their own.

And in this case, USD’s policy does explicitly provide for punishment, making it not only troubling but also unconstitutional.

For this reason, the University of South Dakota is our June 2017 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 email 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 free speech, consider joining the FIRE Student Network, a coalition of college faculty members and students dedicated to advancing individual liberties on their campuses.

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