FIRE announces the Speech Code of the Month for October 2005: Northern Arizona University.
\Northern Arizona University, a public institution, maintains a Safe Working and Learning Environment Policy providing that “[p]rohibited harassment includes, but is not limited to, stereotyping, negative comments or jokes, explicit threats, segregation, and verbal or physical assault when any of these are based upon a person’s race, sex, color, national origin, religion, age, disability, veteran status, or sexual orientation. When these harassing behaviors become severe, pervasive or persistent, they may also violate Federal and State law” (emphasis added).
Not only does this policy explicitly prohibit constitutionally protected speech, but it also contains a gross misstatement of the law. As a state agency, Northern Arizona is legally bound by the First Amendment. As a result, the university can prohibit only unprotected harassment as it has been defined by federal law—when it comes to student-on-student harassment, that means behavior “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 633 (1999). The First Amendment protects all but the narrowest categories of speech, and federal anti-harassment law represents the limits of what speech the state may legitimately regulate as harassment. In other words, if speech doesn’t violate federal anti-harassment law, it is not constitutionally unprotected harassment. The university’s admission that it prohibits more speech than federal and state law is an admission that its policy is unconstitutional.
Moreover, the policy explicitly prohibits protected speech such as “stereotyping” and “negative comments and jokes.” As courts have stated so many times, and as FIRE has repeated innumerable times on these pages, speech is not harassment simply because it offends someone. Harassment is extreme behavior, behavior so repeated and severe that its victim is effectively denied an education. In the marketplace of ideas that is a university, some people will make “negative comments” and other people will be hurt or offended by those comments. This is not harassment; this is everyday life. If students go through four years of college believing that they can hold legally accountable anyone who offends them, they are in for a rude awakening upon graduation, and are woefully unprepared for life in our broader society. In addition to violating the law, Northern Arizona University is doing its students a grave disservice by shielding them from all offense.
For these reasons, Northern Arizona University is our October 2005 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.