Here on The Torch, we have reported on several occasions about the growing number of university policies prohibiting so-called "bias incidents." The problem, from FIRE’s perspective, is that these "bias incidents" are often defined to include constitutionally protected expression. One of the policies we highlighted in the past was a policy at Oregon State University defining a "bias incident" as "any behavior, word, or action directed toward an individual or group based upon actual or perceived identity characteristics or background. Such acts may result in creating an unsafe environment or have a negative psychological, emotional, or physical effect on an individual, group, and/or community." As if that weren’t bad enough, the policy went on to provide that "Bias incidents occur regardless of whether the act is legal, illegal, intentional, or unintentional."
I was pleased to discover, while updating Oregon State’s policies for the current academic year, that the offending definition of a "bias incident" no longer appears on the website for Oregon State’s Bias Response Team. It is good news for students wishing to speak freely that the university has rethought its policy and decided not to prohibit, among other things, all words that unintentionally have a negative emotional effect on their listeners. Instead of its earlier definition, the website now only provides a list of "types of incidents":
- Physical assault/confrontation, stalking
- Damage to property
- Graffiti, signs
- Threatening mail, email, voice mail, telephone message
- Telephone harassment
- Verbal harassment, slurs, threats
- Written slur
Unfortunately, some of these examples—e.g., the prohibition on "slurs" and "verbal harassment"—threaten protected speech and are ill-defined to boot. Particularly in light of the fact that Oregon State still maintains other unconstitutional speech codes, FIRE must continue to rate Oregon State a "red light."
Although this development represents a positive step for free speech at Oregon State, the university needs to further refine the policy to clarify that protected expression—which generally includes "slurs," and often includes what universities dub "verbal harassment"—will not be punished.