FIRE announces its Speech Code of the Month for January 2016: Clark University in Worcester, Massachusetts.
2016’s inaugural Speech Code of the Month is a doozy.
Clark’s Code of Student Conduct prohibits “bias incidents,” defined as follows:
Bias incidents, like hate incidents, involve treating someone negatively because of their actual or perceived: age; creed; (dis)ability; ethnic or national origin; gender; gender identity; or gender expression; marital status; political or social affiliation; race; religion; or sexual orientation. Examples of bias incidents, include but are not limited to: telling jokes based on a stereotype, name-calling, stereotyping, posting or commenting on social media related to someone’s identity in a bias matter, and altering or removing any faith-based symbol.
The policy prohibits “treating someone negatively” because of a wide range of personal characteristics, including “political or social affiliation.” So, literally, rolling your eyes at someone who says he or she is voting for Donald Trump is a bias incident under this policy. So is telling someone you don’t date frat guys. Or telling a blonde joke. Lest you think I am exaggerating, just look at the proffered examples of bias incidents, which include “telling jokes based on a stereotype,” “stereotyping,” and “commenting on social media related to someone’s identity in a bias [sic] manner.”
More critically, the plain language of the policy applies to speech on core political and social issues. In case you haven’t noticed, people have a tendency to attribute viewpoints with which they disagree to bias on the part of their holders. And sometimes they are right! But that doesn’t mean those viewpoints are not entitled to be aired, along with other viewpoints, in the marketplace of ideas. It is inconsistent with a free society to shut down an entire line of argument simply because you question the speaker’s motives.
Moreover, as FIRE friend Jonathan Rauch so eloquently wrote,
I feel more confident than ever that the answer to bias and prejudice is pluralism, not purism. The answer, that is, is not to try to legislate bias and prejudice out of existence or to drive them underground, but to pit biases and prejudices against each other and make them fight in the open. That is how, in the crucible of rational criticism, superstition and moral error are burned away.
That critical competition on the road to truth—one university administrators should embrace—is a punishable offense at Clark.
Although Clark is private and not legally bound by the First Amendment, the university promises its students freedom of expression. Specifically, the university’s policy on Student Rights, Responsibilities and University Judicial Procedures provides:
Clark University students have the rights to express their ideas, thoughts and opinions, both individually and in manners of forum or protest, without fear of censure or retribution from members of the Clark University community.
Similarly, Clark’s internet usage policy states that “[t]he University cherishes the diversity of values and perspectives that are part [sic] an academic institution and so is respectful of freedom of thought, inquiry and expression.” The university promises that “[u]sers are free from censorship in expressing their views through electronic communications facilities.” Unless, apparently, someone at Clark subjectively deems those views to be biased, in which case students can be punished.
It is because of this hypocrisy—promising free speech with one hand, and dramatically restricting it with the other—that Clark University is our 2016 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 email@example.com 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 the FIRE Student Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses.