FIRE announces its Speech Code of the Month for July 2008: Delta State University.
Delta State’s harassment policy provides that harassment occurs when the work or learning environment “is one that a reasonable person would objectively find hostile or abusive or one that the particular person who is the object of the harassment perceives to be hostile or abusive.” (Emphasis added.) Defining harassment on the basis of the perception of the allegedly harassed individual completely eliminates any semblance of objectivity in Delta State’s harassment policy. In other words, harassment occurs when either a reasonable or an unreasonable person finds the environment to be hostile. This means that students at Delta State are at the mercy of the most sensitive members of the community—if they feel harassed, they have been harassed, no matter how unreasonable those feelings may be.
This policy is a moral outrage. Students at Delta State must tailor their expression to avoid offending those with the most tender sensibilities, a requirement that undoubtedly has a powerful chilling effect on expression at the university. Delta State’s harassment policy undermines the entire purpose of a university, turning it into a place where people walk on eggshells rather than the marketplace of ideas it is supposed to be.
Moreover, the policy stands in stark contrast to the applicable law. The U.S. Supreme Court has explicitly stated that it is not enough that the victim subjectively perceive the conduct as harassing. Rather, to constitute harassment, conduct must be “severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive.” Harris v. Forklift Systems, 510 U.S. 17 (1993). Under the law, the victim’s perception is a necessary but not sufficient precondition to a finding of harassment. Delta State is a public university bound by the First Amendment, and thus must abide by this and other rulings of the Supreme Court. This policy would not hold up in court should a Delta State student decide to bring a legal challenge.
For these reasons, Delta State University is our July 2008 Speech Code of the Month. If you believe that your college or university 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.