FIRE announces its Speech Code of the Month for September 2011: University of Wisconsin Whitewater (UWW).
Remember a few years back when Taco Bell decided that three meals a day were not enough and created “fourthmeal,” “the meal between dinner and breakfast”? Well, UWW has done something similar, but with extra censorship instead of melted cheese at midnight.
Legally, there are two types of sexual harassment. There is quid pro quo (“this for that”) harassment, which occurs when someone requests sexual favors in exchange for a benefit such as a promotion or a better grade. Hostile environment harassment occurs when, as its name suggests, severe and pervasive sexual conduct renders a student’s environment so hostile that he or she is essentially denied equal access to a university’s educational opportunities and benefits.
Not satisfied with these categories, UWW has created a third category on its own: “Obnoxious jerk harassment.” According to UWW’s Human Resources & Diversity office, obnoxious jerk harassment is “not defined by law” but is “frequently employed by one student on another” and includes things like “sexual suggestiveness, jokes, catcalls, whistles, remarks, etc.”
A public university inventing a third, extralegal category of harassment out of whole cloth is bad news for student speech. While nobody likes a jerk, public universities are legally required to uphold their students’ First Amendment rights and, last I checked, being an “obnoxious jerk” is still constitutionally protected, since what constitutes “obnoxiousness” or “being a jerk” is manifestly in the eye of the beholder. This level of ignorance about the Constitution is particularly surprising in Wisconsin, since the UW System lost a highly publicized First Amendment lawsuit in the early 1990s when a federal court declared its policy prohibiting “demeaning remarks” and “jokes” to be unconstitutional.
Of course, as we pointed out last year, the UW System Board of Regents and several of the UW campuses still maintain the very policy that was declared unconstitutional, so perhaps we should not be so surprised by UWW’s speech code. Still, after all our years spent reading speech codes, the audacity of UWW simply making up a new category of harassment took us by surprise. For this reason, UWW is our September 2011 Speech Code of the Month.
If you believe that your college or university should be a Speech Code of the Month, please email email@example.com 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.