Learn More About Speech Codes: Harassment Policies

Summary

Properly defined, harassment is not protected speech. Every university that receives federal funding must follow federal anti-discrimination law, including Title VI and Title IX, and can be held liable for failing to respond to conduct resulting in the creation of a hostile environment that prevents students from obtaining an education. 

Under the standard for peer harassment in the educational setting provided by the Supreme Court in Davis v. Monroe County Board of Education, alleged harassment must be 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.” As the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this issue. Unfortunately, colleges and universities often maintain overly broad harassment policies that proscribe both protected and unprotected speech.

In FIRE’s Spotlight database, you may notice that some institutions earn an overall green light rating, but maintain one or more yellow light harassment policies. This exception to our typical practice of awarding green light ratings to schools that maintain only green light policies is due to federal regulations on Title IX. We will not award policies that fail to substantially track the Davis standard a green light rating. However, current Title IX regulations only mandate the use of the Davis standard for cases falling under Title IX, and explicitly note that harassment outside the scope of Title IX may be regulated under different policies. Further, the Department of Education has not clarified the applicable standard for Title VI. Accordingly, the maintenance of policies that use the broader standard from the 2024 Title IX regulations’ will not threaten an institution’s overall green light rating. FIRE strongly encourages institutions to adopt the Davis standard in all policies regulating peer harassment both within and outside the scope of Title IX.

Consult FIRE’s Model Speech Policies for College Campuses webpage to explore policies from various institutions in our Spotlight database that earn a “green light” rating in each category, including harassment policies.

Common Mistakes

“Severe or pervasive” formulation

Very often, universities define harassment as conduct that is so “severe or pervasive” and objectively offensive that it creates a hostile environment, instead of conduct that is so “severe, pervasive, and objectively offensive” (emphasis added). Under this definition, a multi-day discussion of the use of racial profiling by the police among students in the hallway following a criminal justice class — potentially a “pervasive” discussion — would become punishable if a single student feels that this speech effectively denies them access to their education. As a result, even allowing objectively offensive speech — which might include the idea that racial profiling in policing is good public policy — that is either “severe” or “pervasive,” but not both, to be actionable would result in the punishment of protected expression.

Problematic examples list

All too often, policies include examples lists in an attempt to illustrate the type of harassing conduct the institution wishes to prohibit. However, by stating that harassment “may include” expression such as “epithets, slurs, and jokes,” among other examples, such lists may lead students to assume that all expressive conduct listed is prohibited across the board, and self-censor accordingly. While these types of expression could be part of a larger pattern of repeated conduct that would constitute harassment, most of the time they are protected speech under the First Amendment. FIRE recommends tying the list of examples back to the controlling definitions of harassment in order to avoid this impermissible chilling effect. 

Use of a workplace standard 

Many schools mistakenly import language for harassment policies from the employment context. Often, colleges define harassment as conduct that has the “purpose or effect” of unreasonably interfering with a person’s employment or educational environment. As discussed above, we also see policies define harassment as “severe or pervasive" and objectively offensive conduct. Both these standards are problematic because the employment standards mentioned are not applicable to the educational context because it differs tremendously from the employment context in terms of speech rights. Colleges must clarify which standards apply: employees are governed by one standard, students by another. We suggest maintaining separate policies, if possible, in order to avoid confusion.   

Savings Clause 

In an attempt to avoid claims of free speech violations, universities often include “savings clauses” in their policies. Savings clauses are statements such as “speech protected by the First Amendment shall not be punished under this policy.” These statements, which often directly contradict egregious restrictions on campus speech in the very same policies or handbooks, in no way ameliorate or correct the problematic policies published elsewhere. Rather, these “savings clauses” only worsen existing infirmities in university speech codes by injecting further confusion and uncertainty regarding which speech is and is not subject to punishment on campus.

Policy Examples

Red light

Alabama A&M University: Student Handbook: Code of Conduct Offenses and Sanctions

SEXUAL HARASSMENT. Regardless of sexual gender, personal affiliation, and/or affiliation with the University, sexual harassment is defined as unwelcome and unsolicited sexual advances, requests for sexual favors or other verbal, visual or physical conduct or communication with sexual overtones that the victim deems offensive. Sexual harassment includes, but is not limited to unsolicited, deliberate, or repeated sexual flirtation, advances or propositions; verbal abuse of a sexual nature; display of sexually suggestive pictures or objects; and/or offensive or abusive physical contact of a sexual nature.

Yellow light

Murray State University: Sexual Harassment Policy

[I]n general, sexual harassment means inappropriate conduct on the basis of sex including unwelcome sexual advances, requests for sexual favors or other verbal or physical conduct of a sexual nature when . . . such conduct when committed by a student is so severe, pervasive and objectively offensive that it has the purpose or effect of unreasonably interfering with a student’s work performance or participation or performance in a course, program or activity, or creates an intimidating, hostile or offensive environment for work or any course, program or activity.

Sexual harassment takes many forms. It can include sexual innuendo, suggestive or demeaning comments, insults, hostile remarks, humor and jokes about gender or gender-specific traits, requests or demands for sexual favors, threats or suggestive gestures.

Green light

Alcorn State University: Student Handbook: Code of Conduct- Harassment (Physical or Verbal)

Harassment: (physical, verbal, graphic, written or electronic) that is (1) unwelcome; (2) discriminatory on the basis of race, color, religion, sex, national origin, age disability, genetic information, sexual orientation, or veteran status; (3) directed at an individual; and (4) so severe, pervasive, and objectively offensive that a reasonable person with the same characteristics of the victim would be adversely affected to a degree that interferes with his or her ability to participate in or to realize the intended benefits of an institutional activity, opportunity, or resource.