FIRE announces its Speech Code of the Month for July 2014: Armstrong State University, a public university in the University System of Georgia.
Armstrong’s list of student conduct offenses (PDF) includes, among other things:
Sexual harassment (i.e., unwelcome sexual advances or conduct, creation of a hostile environment as perceived by the complainant, or the demand for sexual favors in return for some benefit.)
This prohibition is so broad that a wide range of constitutionally protected speech—including controversial speech on political or social issues—may be punished by the university as sexual harassment.
One of the critical elements of sexual harassment in the educational environment, as defined by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), is that the conduct must be objectively offensive—that is, offensive to a reasonable person in the victim’s position. By contrast, Armstrong requires only that a student’s conduct create “a hostile environment as perceived by the complainant” (emphasis added), meaning that the most sensitive members of the university community have total veto power over what speech is permissible at the university. This veto power has a serious and impermissible chilling effect on the protected speech of students who may wish to freely discuss sex- and gender-related issues like reproductive rights, sexual assault on campus, or any number of other sensitive topics.
The policy also prohibits any “unwelcome sexual advances or conduct,” without regard to whether that conduct is repeated or even known to the speaker to be unwanted. Again, this stands in direct contradiction to the Supreme Court’s holding in Davis, which requires not only that conduct must be “objectively offensive” in order to constitute sexual harassment, but also that it must be “severe” and “pervasive.”
As a public university, Armstrong is legally obligated to uphold its students’ First Amendment rights, but sadly, it is one of the 58% of public universities that seriously violate those rights. Last week, FIRE officially launched our Stand Up For Speech Litigation Project to begin holding public universities across the country accountable for maintaining speech codes that directly contradict the decades of court decisions holding public university speech codes (including harassment policies even less restrictive than Armstrong’s) unconstitutional. Students at Armstrong and other public universities that are violating students’ First Amendment rights can go here to read more about how they can help challenge these policies.
Actual sexual harassment in educational settings is not constitutionally protected, but it has a real legal definition, set forth by the Supreme Court in Davis: conduct “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Simply describing other speech as “sexual harassment,” as Armstrong does in its policy, does not magically change the protected nature of that speech.
For these reasons, Armstrong State University is our July 2014 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 firstname.lastname@example.org 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 FIRE’s Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.