FIRE announces its Speech Code of the Month for April 2009: San Jose State University (SJSU). SJSU’s housing department maintains a policy on “harassment and/or assault” which provides:
Any form of activity, whether covert or overt, that creates a significantly uncomfortable, threatening, or harassing environment for any UHS resident or guest will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution. The conduct does not have to be intended to harass. The conduct is evaluated from the complainant’s perspective.
The policy then provides examples of the types of conduct that are prohibited, including “verbal remarks,” “ethnic slurs,” and “publicly telling offensive jokes.”
Confusing the matter, the policy also provides a wholly different definition of “verbal harassment” in a different subsection. This definition is much closer to the legal standard; it provides that “Verbal harassment occurs when unwelcome speech or conduct is so severe, persistent, or pervasive that it interferes with an employee’s work performance or a student’s ability to participate in or benefit from an educational activity or program, or creates an intimidating, hostile or offensive working, living, or educational environment.”
The problems with this policy are numerous, so let’s examine them one by one.
I. Conflicting Definitions
While supporters of SJSU’s housing department harassment policy may argue that it provides an accurate definition of harassment, prohibiting conduct that is “severe, persistent, or pervasive,” that argument is wholly undermined by the fact that this definition completely conflicts with the policy’s earlier statement that “any form of activity, whether covert or overt, that creates a significantly uncomfortable, threatening, or harassing environment” constitutes grounds for disciplinary action and possibly even eviction from the residence halls. Students, not knowing which of these two definitions is controlling, will err on the side of caution to avoid ending up like poor Tim Garneau, who briefly lived out of his car after being evicted from the University of New Hampshire’s residence halls for posting a “harassing” flyer joking about the “freshman fifteen.”
II. “Significantly Uncomfortable”
This policy, in addition to prohibiting a “threatening” or “harassing” environment, also prohibits the creation of an environment that is “significantly uncomfortable.” This vague prohibition poses a significant threat to free speech on campus. Indeed, speech that makes others “uncomfortable” is in large part what the First Amendment exists to protect. SJSU would be wise to heed the words of the United States Supreme Court, which has stated that “Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (emphasis added).
III. “The Conduct is Evaluated from the Complainant’s Perspective”
This policy’s provision that “the conduct is evaluated from the complainant’s perspective” stands in direct contradiction of the law, which requires that claims of harassment be evaluated from the perspective of a reasonable person in the victim’s position. The purpose of this “reasonable person standard” is to ensure that the entire community is not governed by the standards of its most oversensitive members, and it is crucial to freedom of speech. If everyone must constantly walk on eggshells to avoid making the most sensitive person on campus “uncomfortable,” open debate and dialogue will be stifled.
IV. Examples that Prohibit Protected Speech
Finally, this policy suffers from a flaw common to many university harassment policies: it includes examples of harassment that explicitly include constitutionally protected speech. For example, “publicly telling offensive jokes” is completely protected unless it rises to the extreme level of severity and pervasiveness necessary to constitute actual harassment. Even “ethnic slurs,” although undoubtedly offensive, are under most circumstances protected speech.
SJSU is a public university, bound by the First Amendment. What’s more, it is a part of the California State University system, several of whose speech codes were the subject of a successful federal lawsuit. Thus, the fact that SJSU maintains this egregious harassment policy is simply indefensible. For this reason, it is our April 2009 Speech Code of the Month. If you believe that your college or university should be a Speech Code of the Month, please e-mail 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, considering joining FIRE’s Campus Freedom Network, a loosely-knit coalition 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.