FIRE announces its Speech Code of the Month for June 2006: Coast Community College District.
The Coast Community College District consists of three California community colleges with a total enrollment of more than 60,000 students: Coastline Community College, Golden West College, and Orange Coast College. You may remember that FIRE had to intervene at Orange Coast College several years ago after the college suspended a professor without any official and appropriate hearing, procedures, and proceedings, in the wake of a heated and well-publicized discussion about terrorism in one of his classes.
Sadly, the disrespect for free speech extends beyond just Orange Coast College. The Coast Community College District maintains a Student Code of Conduct—applicable to students at all three colleges—that is a laundry list of First Amendment violations.
The Code’s hopelessly overbroad provision on sexual harassment prohibits “epithets, derogatory comments or slurs” and “derogatory posters, cartoons, or drawings.” Moreover, the provision states that “‘[u]nwelcome conduct’ is defined as conduct which the [person] does not solicit or initiate and which the person regards as undesirable or offensive” (emphasis added). As the Supreme Court has stated, however, for student conduct to constitute constitutionally unprotected harassment, it must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999) (emphasis added). This policy, by contrast, requires only that the victim find the speech offensive, leaving students at the mercy of the community’s most sensitive members—something the Supreme Court has explicitly prohibited. Harris v. Forklift Systems, 510 U.S. 17, 21–22 (1993) (harassment must create “an environment that a reasonable person would find hostile or abusive” (emphasis added)). Moreover, the policy explicitly bans constitutionally protected speech, such as derogatory comments or cartoons.
The Code also prohibits “[h]ateful behavior aimed at a specific person or group of people,” a prohibition that is unconstitutionally vague. In order to avoid vagueness, laws must “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). This policy broadly prohibits any “hateful” behavior, requiring students to guess, under threat of punishment, just what might be interpreted as “hateful.” (As just one example of how such a policy might be applied, Gonzaga University attempted to discipline students for “hate speech” in 2003 for posting flyers advertising a speech by the author of Why the Left Hates America.)
Finally, the Code prohibits “habitual profanity or vulgarity.” The Supreme Court has held in numerous cases that language cannot be prohibited simply because it is vulgar or indecent. In Cohen v. California, the Supreme Court overturned the conviction of a man who wore a jacket bearing the words “Fuck the Draft” into a county courthouse. In holding that his expression was entitled to constitutional protection, the Court wrote that “one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.” Cohen v. California, 403 U.S. 15, 25 (1971). The Court reiterated this principle in the university context in Papish v. Board of Curators of the University of Missouri, 410 U.S. 667, 670 (1973), when it wrote that “the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of ‘conventions of decency.’”
The Coast Community College District is part of the government of California, and as such, it is legally obligated to uphold the First Amendment rights of its students and faculty. The Student Code of Conduct demonstrates that it has utterly failed to do so. For this reason, it is our June 2006 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please e-mail email@example.com with a link to the policy and a brief description of why you think attention should be drawn to this code.