A common misstep FIRE encounters in college speech codes is the inclusion of more than one definition of a particular type of misconduct within a single policy.
These policies typically provide a broad and speech-restrictive definition of the term, followed by a more reasonable definition. Regardless of whether the broader definition is applied in practice, its inclusion in the policy is confusing and creates a potential chilling effect on expression. After all, students reading these policies are forced to assume they could be enforced, and they may reasonably fear punishment over something as simple as telling a classmate a joke.
McNeese State University’s “Equity and Inclusion Policy” is an example of a policy that makes this misstep, earning the Louisiana university its spot as FIRE’s September 2018 Speech Code of the Month.
As a public university, McNeese State is required by federal anti-discrimination law to prohibit discrimination and discriminatory harassment. Expression that is a part of conduct that meets the legal definition of discriminatory harassment is not constitutionally protected. However, this policy’s section on “Sexual Harassment/Discrimination” starts as follows:
The use of any term or the commission of any act that is sexually derogatory or discriminatory will not be tolerated.
The policy then goes on to provide narrower definitions of quid pro quo and hostile environment harassment. However, providing further definitions does nothing to change the fact that the policy has just broadly stated that any terms that are “sexually derogatory” are not tolerated at the university.
Words that are subjectively seen as sexually derogatory could be included in a pattern of conduct that meets the Supreme Court’s standard for student-on-student (or peer) hostile environment harassment, but are typically constitutionally protected when standing alone. And since any number of words could be deemed sexually derogatory — even reclaimed terms like “queer” — this policy prohibits a great deal of protected speech.
Students at a public university like McNeese State shouldn’t have to err on the side of caution when it comes to constitutionally protected speech. Instead, McNeese State’s policy should include just one definition of discriminatory harassment — one that fully tracks the Supreme Court’s peer harassment standard.
When prohibited conduct is clearly defined, students better understand how to follow the policy, which is a win for everyone involved.
McNeese State University is our September 2018 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 Student Network or Faculty Network to connect with a coalition of college students and faculty members dedicated to advancing individual liberties on their campuses.
Ask McNeese to revise this speech code