FIRE announces its Speech Code of the Month for May 2013: Troy University in Alabama.
As FIRE’s annual speech codes report demonstrates, the percentage of colleges and universities maintaining unconstitutional speech codes has been on the decline for several years now. In our most recent report, the percentage of schools earning FIRE’s worst, “red light,” rating stood at just over 62%, down from a high of 75% five years ago.
One place where this change has been particularly evident is in university policies addressing harassment and discrimination. Over the years, an increasing number of schools have gotten the message that “harassment” has a specific legal definition in the educational setting, and that definitions that vary from that standard infringe on protected speech. That definition, set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), provides that to constitute unprotected harassment, student-on-student conduct must be targeted, discriminatory, and “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
One school that has most definitely not gotten the message about harassment is Troy University, which defines it (PDF) as:
any comments or conduct consisting of words or actions that are unwelcome or offensive to a person in relation to sex, race, age, religion, national origin, color, marital status, pregnancy, or disability or veteran’s status.
This policy prohibits a staggering amount of constitutionally protected speech, including almost any expression of a political opinion that another person finds offensive. Who among us does not routinely encounter political opinions that are “offensive” to us in relation to our sex, race, religion, age, and so forth? If you compare Troy’s definition of harassment to the Davis standard quoted above, you will see how grossly deficient it is. It requires no showings of severity or pervasiveness—a single comment is enough, even if that comment is relatively mild. Worse yet, it requires no showing of “objective offensiveness”; it is sufficient that the expression in question is “unwelcome or offensive” to the listener, something that courts have repeatedly held unconstitutional.
Troy is a public university, legally bound to uphold its students’ First Amendment rights. The university knows this; the “Commitment to Free Expression” (PDF) in its Student Handbook states:
Students at public universities enjoy robust speech rights under the Constitution in order to contribute to the marketplace of ideas, learn from each other, and freely discuss and debate a wide range of issues. Troy University is committed to protecting the freedom of speech for students, faculty, and staff, and will not infringe on speech that may be considered to be an unpopular or inconvenient expression of ideas.
Yet the university explicitly betrays this commitment in the very same handbook by prohibiting virtually any speech that is offensive to another member of the campus community.
For this reason, Troy University is our May 2013 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 Campus Freedom Network, an organization of college faculty members and students dedicated to advancing individual liberties on their campuses. You also can add FIRE’s Speech Code of the Month widget to your blog or website and help shed some much-needed sunlight on these repressive policies.