To: Christian Matthews, President, Young Americans for Liberty, University of Vermont
From: Azhar Majeed, Associate Director of Legal and Public Advocacy, Foundation for Individual Rights in Education (FIRE)
Date: November 1, 2013
Re: Speech Codes at the University of Vermont
This memorandum is in response to your request for information about how the University of Vermont’s policies can be revised to better protect students’ rights to free speech under the First Amendment.
FIRE rates a university as a “red light,” “yellow light,” or “green light” institution depending on the extent to which the university’s written policies restrict constitutionally protected speech. The University of Vermont (UVM) currently maintains three yellow light speech codes, which we define as ambiguous policies that could ban or excessively regulate protected expression and too easily invite administrative abuse and arbitrary application. However, the university does not have any speech codes earning FIRE’s worst, red light rating, reserved for those university policies that both clearly and substantially prohibit protected speech. The university therefore earns an overall yellow light rating from FIRE.
Fortunately, UVM’s yellow light policies could easily be revised to protect student discourse and meet the university’s moral and legal obligations under the First Amendment. FIRE would be very pleased to work with the students and administration of UVM to improve the university to an overall green light rating.
Furthermore, should the university achieve this noteworthy distinction—currently earned by only 16 colleges and universities across the country—we would be thrilled to publicize UVM’s policy revisions and to laud its efforts through national and local media. By earning a green light rating from FIRE, UVM would not only join select company among its peer institutions, it would send an unmistakable signal to students, faculty, parents, and concerned citizens that the university takes seriously its constitutional obligations and values unfettered expression on its campus.
A discussion of the First Amendment issues with each of UVM’s three speech codes and proposed solutions for remedying those defects follows.
I. Sexual Harassment: Students
This policy states, in relevant part:
Unwelcome sexual advances, requests for sexual favors, and other verbal, written, visual, or physical conduct of a sexual nature constitute sexual harassment when one or more of the following occur:
the conduct has the purpose or effect of substantially undermining, interfering with or detracting from a student’s educational performance or access to university resources or creating an objectively intimidating, hostile, or offensive environment.
Examples of sexual harassment may include, but are not limited to, the following:
- persistent, offensive, and unwelcome sexual jokes and comments
- unwelcome displays of sexually graphic pictures
UVM’s policy restricts First Amendment rights by using a definition of sexual harassment that falls short of the controlling legal standard for student-on-student (or peer) hostile environment harassment in the educational setting as set forth by the Supreme Court of the United States. In Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), the Court held that peer harassment in the educational context is only that conduct which 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. Moreover, the precise Davis standard appropriately balances universities’ dual obligations to prevent actionable harassment and to protect students’ freedom of speech.
UVM’s policy, in contrast, defines actionable sexual harassment as conduct having the “purpose or effect of substantially undermining, interfering with or detracting from a student’s educational performance or access to university resources or creating an objectively intimidating, hostile, or offensive environment.” This lesser standard places protected speech that does not come close to meeting the Davis threshold at risk for punishment and conflicts with federal court precedent. To cite just one decision, the U.S. Court of Appeals for the Third Circuit struck down, on First Amendment grounds, a sexual harassment policy maintained by Temple University that prohibited conduct having the “purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status” or the “purpose or effect of creating an intimidating, hostile, or offensive environment.” DeJohn v. Temple University, 537 F.3d 301 (3d Cir. 2008). To be consistent with the First Amendment rights of its students, UVM must employ the Davis standard as its substantive standard for peer harassment.
The other free speech issue raised by UVM’s policy is its purported examples of “persistent, offensive, and unwelcome sexual jokes and comments” and “unwelcome displays of sexually graphic pictures.” While this type of verbal conduct would become actionable if part of a larger pattern of conduct that satisfies the Davis standard, standing alone it must not be prohibited as sexual harassment. After all, the ban on “unwelcome displays of sexually graphic pictures” potentially encompasses such protected expressive activity as a campus performance of The Vagina Monologues or even a student group’s flier promoting that performance. As long as a complaining individual subjectively finds this expression to be “unwelcome,” the speech in question could be sanctioned as sexual harassment under UVM’s policy.
This flaw likely renders the policy overbroad on its face. A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a substantial amount of protected speech along with that which it may legitimately regulate.” Doe v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy on First Amendment grounds), citing Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973). On a public university campus, students must not possess the ability to shut down others’ protected expression by simply labeling it “unwelcome” or “offensive.” Consequently, UVM would be well advised to remove the two problematic examples of sexual harassment listed above from its policy, or at the least to make clear in its policy that these and other examples will only constitute sexual harassment when they are part of a larger pattern of conduct that rises to the level of the Davis standard.
II. Student Alcohol and Other Drug Policy
This speech code provides, in pertinent part”
The sponsoring organization is responsible for any publicity, advertising, marketing, or promotion that is disseminated in conjunction with the event and must ensure adherence to the following guidelines:
- Advertisements must avoid demeaning sexual or discriminatory portrayals of individuals.
UVM’s policy untenably bans any “demeaning sexual or discriminatory portrayals of individuals.” As an initial matter, it is unclear whether this policy addresses “portrayals of individuals” that are “demeaning,” “sexual,” or “discriminatory,” or rather portrayals that are “demeaning” and either “sexual” or “discriminatory.” In either case, the policy restricts a wide swath of constitutionally protected speech, as much speech that is “demeaning,” for example, is protected by the First Amendment. Consider the Supreme Court’s declaration many years ago that “a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). UVM’s policy fails to recognize these principles and is thus susceptible to an overbreadth challenge.
In addition to likely being overbroad, this policy encounters vagueness problems. A policy or regulation is said to be unconstitutionally vague when it does not “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Not only is the policy’s terminology open to multiple interpretations, as noted above, students are likely to be confused and uncertain about whether particular expression may subject them to investigation and disciplinary action.
Would a student group’s flier advertising a campus lecture in favor of the legalization of marijuana be considered “discriminatory” because it favors those individuals holding one viewpoint (namely, in favor of the legalization of marijuana) over those holding the opposite viewpoint? Likewise, would a flier advocating for less government expenditure on the “war on drugs” and for reduced sentencing for drug-related offenses be considered “demeaning” or “discriminatory” toward those who do not agree with these political views? The confusion engendered by UVM’s policy on these and other points not only brings into question its soundness under First Amendment doctrine, it creates the possibility that students will self-censor rather than risk punishment. This chilling effect does grave harm to the marketplace of ideas that a public university campus is meant to be.
Lastly, it is unclear why this particular provision is necessary to meet UVM’s purported interest in regulating students’ use of alcohol at campus events and preventing alcohol and drug abuse. While the rest of UVM’s Student Alcohol and Other Drug Policy is aimed toward this purpose, the provision identified here goes well beyond and restricts a wide swath of constitutionally protected speech having nothing to do with that objective. Therefore, UVM would be well advised to remove its ban on “[a]dvertisements” containing “demeaning sexual or discriminatory portrayals of individuals.”
III. Office of Affirmative Action & Equal Opportunity: Bias Incidents Protocol
This policy reads, in relevant part:
Bias incidents include those actions that are motivated by bias, but not meet [sic] the necessary elements required to prove a crime.
UVM’s policy defines “[b]ias incidents” in a problematic and amorphous manner. After all, banning all “actions that are motivated by bias” but do not constitute a crime encompasses a great deal of expression protected by the First Amendment. Under this policy, students may find themselves facing official investigation and disciplinary action for expressing their views on issues such as affirmative action, immigration reform, the gender wage gap, gay marriage, and much more. These and other often-contentious topics are necessarily defined by one’s views, or “biases,” toward one side or another. Despite the fact that the First Amendment at its core protects this type of social and political commentary, students could face punishment if another student is offended by their viewpoint and claims that the unwelcome speech was “motivated by bias.” This runs counter to the Supreme Court’s recognition that “speech concerning public affairs is more than self-expression; it is the essence of self-government,” reflecting “our ‘profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.’” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)).
Moreover, UVM’s policy does not provide sufficient notice to students of what speech is prohibited and what is allowed. Indeed, it is unclear where the university intends to draw the line between speech that is merely “biased” and conduct rising to the level of criminal behavior. Given the policy’s lack of explanation or guidance on this point, students may well choose to avoid the discussion of any topics—including those listed above—on which their views could be alleged to be “motivated by bias.” As the Supreme Court has observed, “[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).
If UVM simply wishes to encourage its students to refrain from “biased” actions, without infringing on First Amendment rights, it can easily do so by making the policy plainly aspirational. The university would only need to clearly state that the values it sets forth (including refraining from “biased” speech) are aspirational, and that students will not face investigation or disciplinary action for speech failing to meet those values. For instance, the University of Virginia, a green-light institution, maintains a “Bias Reporting Web Site” that clarifies:
Some bias-motivated or otherwise disrespectful acts may be constitutionally protected speech and thus not subject to University disciplinary action or formal investigation. Indeed, as our founder Thomas Jefferson once wrote, “For here we are not afraid . . . to tolerate error so long as reason is free to combat it.” However, we should do all that we can to foster a good dialogue on what is appropriate in our community of peers.
Furthermore, after providing a definition for a “bias complaint,” the University of Virginia’s policy states, “This definition is used for reporting and statistical purposes only. It carries no independent sanctioning weight or authority.” These two statements make clear to students at the University of Virginia that they will not be subject to punishment for engaging in expression that falls under its definition of a “bias complaint.” UVM would do well to similarly make its policy clearly aspirational, so that students’ First Amendment rights are not restricted.
FIRE hopes this memorandum is helpful in your efforts to reform the speech codes currently maintained by the University of Vermont. Once again, each of these policies could easily be revised to better protect students’ expressive rights. FIRE would be very pleased to work with the students and administration of UVM to help the university meet its obligations under the First Amendment.