FIRE announces its Speech Code of the Month for August 2011: Mansfield University of Pennsylvania.
Mansfield’s student handbook, the Mountie Manual, includes a Student Rights and Responsibilities document. Under the heading of “freedom from discrimination,” the policy states:
It is everyone’s responsibility to create a social order that is free of discrimination. We are obligated to examine our own behavior and to provide role models for others which are free of racism and other actions which either diminish the self-esteem or any person or create an atmosphere in which their striving for competence is diminished. … If any member of the university community is subjected to behavior which they believe is racist or discriminatory, they should contact the Social Equity and Multicultural Affairs Office ….
This policy exemplifies the condescending attitude that underlies so many student conduct policies (such as, for example, definitions of “consent” in sexual assault policies under which women are presumed to lose all sexual agency the moment they begin to feel the effects of alcohol). The underlying assumption of this policy is that Mansfield students are so weak that they cannot be exposed to anything that would “diminish [their] self-esteem” or their “striving for competence.” I would hope that my university already presumed me to be competent when they admitted me, but perhaps some college administrators think striving for excellence is a bridge too far. Might some students feel diminished in their self-esteem when they read that, to Mansfield, they are striving just to become competent?
Beyond being painfully paternalistic, this policy is also unconstitutionally vague and overbroad. And given that the U.S. Court of Appeals for the Third Circuit—in which Mansfield, a public university, is located—has the strongest record in the country of striking down university speech codes, Mansfield should pay attention here. The U.S. 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 simply no way that a reasonable student could know in advance what speech or expression (or behavior) might have a detrimental effect on another person’s self-esteem or on their “striving for competence,” whatever that means. Faced with such an amorphous regulation, many students will likely avoid any controversial expression.
The policy is also unconstitutionally overbroad, since most speech that someone would consider “racist” (an extremely broad term that could encompass anything from unprotected racial harassment or threats to wholly protected expressions of unpopular opinions on topics such as affirmative action) or that otherwise affects someone’s self-esteem is entirely constitutionally protected. As the Third Circuit held in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive.”
Mansfield’s policy on “freedom from discrimination” is both unconstitutional and an insult to its student body, who are—contrary to the administration’s implication—strong enough to live with the First Amendment freedoms that are guaranteed to them. For these reasons, Mansfield University of Pennsylvania is our August 2011 Speech Code of the Month.
If you believe that your college or university 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 these issues, consider joining FIRE’s Campus Freedom Network, a loose affiliation of college faculty members and students dedicated to advancing individual liberties on their campuses. And if you would like to help fight abuses at universities nationwide, add FIRE’s Speech Code of the Month Widget to your blog, website, or Facebook profile and help shed some much-needed sunlight on these repressive policies.