Emily Harrison is a FIRE summer intern.
Oregon State University (OSU) is just one "red light" speech policy away from earning FIRE’s acclaimed "green light" distinction. The university revised its restrictive "Electronic Harassment" policy in 2008, which is a positive indicator of OSU’s willingness to protect the free speech rights of its students and faculty members. We hope this means that OSU might be willing to revise its "Sexual Harassment and Sexual Violence" policy, which is OSU’s lone remaining speech code.
OSU’s Equity and Inclusion Office offers an "overview" of OSU’s sexual harassment policy:
Sexual harassment includes sexual or gender-based behavior that is unwanted and/or nonconsensual, and has the effect, intended or unintended, of producing harm. It includes behavior along a continuum of severity, from offensive talk to physical violence, including but not limited to rape.
In examining the legal issues concerning OSU’s policy, it is important to understand the established legal precedent surrounding sexual harassment policies in the educational setting. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the U.S. Supreme Court provided a definition of student-on-student sexual harassment in the educational setting as conduct that is:
"so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities."
Unfortunately, OSU’s policy fails to include the elements of "severity," "pervasiveness," and "objectively offensive" conduct as required by the Supreme Court’s controlling decision in Davis. Those qualifiers are necessary to ensure that only truly harassing behavior is prohibited. If speech does not have to be severe and pervasive, any offhand remark could qualify; if speech does not have to be "objectively offensive," then harassment could be defined by the most sensitive member of the community.
Another major difference between Davis and the OSU policy is that Davis requires that victim-students are "effectively denied equal access to an institution’s resource and opportunities," while the OSU policy requires only "harm." Yet the term harm is not defined. This leaves open the possibility that OSU could punish students for causing emotional harm or hurt feelings, which fall far short of the "denied equal access" standard set in Davis. Without a higher threshold, students would rightly fear that even an innocent comment would result in punishment. These key differences between Davis and OSU’s sexual harassment policy illustrate the need for changing OSU’s policy.
In addition to failing to meet the Davis standard, OSU’s policy is unconstitutionally vague. The Supreme Court stated in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) that laws must "give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." Otherwise, the law or regulation is unconstitutionally vague. The lack of clear guidance created by the generic term "harm," along with the low threshold for committing an offense, prevent students from knowing what speech is actually prohibited. This will cause students to avoid certain categories and subjects of speech altogether. While the speech may be protected, students may feel it would be too risky to engage in because the topic is controversial or emotionally weighty.
As the Supreme Court recognized in Grayned, "[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’" Grayned, 408 U.S. at 109 (internal citations omitted). A policy that does not give students any decisive guidance, and forces them to avoid certain topics altogether, does not pass constitutional muster.
Another issue with OSU’s policy is that it is overbroad, meaning that it prohibits speech, such as "offensive talk," that is protected by the First Amendment. In Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), the Court stated that "the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’" Based on the precedent set by Papish, the First Amendment does not afford OSU the ability to ban all speech that is sexual or gender-based "offensive talk." If OSU truly wants to prohibit sexual harassment, it can find the right balance by adopting the Davis standard. By doing so, OSU can punish true harassment while protecting a free exchange of ideas.
Based on the manner in which Oregon State’s current policy is written, students who utter seemingly innocuous phrases could face punishment. Accordingly, a student’s discussion of the television series Modern Family‘s handling of gay relationships that offends another student who is opposed to homosexual behavior on religious grounds could prompt a complaint and punishment. The university could also potentially punish a male student campaigning against a female student for a student governance position who inadvertently offended his opponent by calling her budget proposal "stupid" or even "ill-conceived."
It is time for OSU to take the necessary steps to revise its sexual harassment policy’s language. Not only is it the right thing to do from a First Amendment perspective, but it will also curtail the number of potential students facing disciplinary actions for engaging in protected speech.
We at FIRE are extremely optimistic that such a transformation can take place and that OSU will eliminate its last remaining red light policy. In that event, FIRE would be pleased to deem OSU as a green light university, enabling it to become recognized as a national leader in the protection of student rights on campus.