Another year, a dozen more ridiculous speech codes. To kick off the new year, FIRE announces its Speech Code of the Month for January 2013: Auburn University at Montgomery (AUM).
AUM’s Policy Regarding Harassment and Discrimination of Students (PDF) prohibits harassment, which at AUM includes “jokes or other graphic or physical conduct relating to a student’s race, color, sex, religion, national origin, age, sexual orientation, disability or veteran status.” After years of writing this monthly feature, I often feel like a broken record, but I will keep repeating myself so long as universities continue not to understand: a public university bound by the First Amendment cannot simply prohibit offensive jokes! As the U.S. Supreme Court has held, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989).
As one would hope that someone in the AUM administration would surely know, harassment in the educational setting actually has a specific legal definition: it is conduct “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.” Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). Any definition falling short of this standard threatens students’ free speech rights, and AUM’s definition falls far short.
The section of the policy quoted above would alone be sufficient to earn AUM the title of Speech Code of the Month… but wait! There’s more!
The same policy also bans “abusive behavior,” and provides (emphases added) that:
Abuse in an academic setting is emotional and psychological abuse inclusive of put-downs, bullying, intimidation, harassment, shame, coercion, exerting values of power, lying, condescension, creating feelings of powerlessness, being made to feel insignificant or inferior, excessive demands of perfection, inconsistent application of practices, not providing employees sufficient information to perform, depriving of rights/benefits, inappropriate nonverbal behaviors, ignoring, belittling, talking down to another, making judgments and setting up situations for failure.
This policy places a terrible burden on professors in the classroom. How is a faculty member supposed to perform her job if she risks harassment charges for—among other things—”exerting values of power” (isn’t a faculty member supposed to be in charge of her classroom?), “excessive demands of perfection” (when did that stop being a teacher’s job?) or “making judgments” (um, what else do you call grading?)
In addition to its terribly detrimental effect on professors’ academic freedom, this policy is unconstitutionally vague. The Supreme Court has held that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” or else they are unconstitutionally vague. Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Here, there is literally no way for a professor to know if his or her conduct constitutes “abuse” according to AUM’s policy. Frankly, by the plain language of the policy, it sounds impossible not to be “abusive” in the course of teaching a class.
AUM’s Policy Regarding Harassment and Discrimination of Students is unconstitutional from start to finish and puts students’ and faculty members’ free speech rights in jeopardy. There is simply no way that someone in the AUM administration does not understand this. If AUM does not revise this policy, it is highly vulnerable to a lawsuit and its administrators are potentially vulnerable to personal liability for failing to adhere to clearly established constitutional standards.
For these reasons, AUMs harassment policy is our January 2013 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 Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month Widget to your blog or website and help shed some much-needed sunlight on these repressive policies.