Kelsey Curtis is a FIRE Summer Intern.
As I prepare to enter my senior year at Colgate University, I am spending a lot of time reflecting on all that I have learned and how much I have grown over the course of my college experience. Colgate’s faculty and students have provided me with opportunities for exploration every day, and it is because of the thoughtful community at Colgate that I have been able to gain so much. It was not until I began my internship at FIRE this summer that I realized that this learning environment is in a precarious position. Colgate University’s Standards of Conduct and Non-Academic Policies contain several restrictive "speech codes" that threaten the open exchange of ideas at Colgate. The policies are well intentioned, aimed at protecting students and faculty at Colgate from sexual harassment and bias-related discrimination. But their overbroad and vague language means that they can be applied to speech that is well within the protection of the First Amendment. Although Colgate is a private university, not legally bound by the First Amendment, it claims to value and protect "the rights of free inquiry, expression and assembly." Shouldn’t its students, therefore, have the same rights as students at New York’s public colleges and universities?
Colgate’s policy concerning sexual harassment "prohibits one student from using sexually demeaning language to refer to another student." This includes "vulgar or lewd statements, gender-based name-calling, sexually suggestive or graphic comments, or comments that demean a person because of his or her gender." So, under this policy, even calling another individual a "boy" or a "girl" could theoretically be punished—after all, wouldn’t that be "gender-based name-calling"? The policy also prohibits "displaying suggestive or lewd pictures." Following this logic, administrators could punish all students participating in and advertising for the annual Vagina Monologues for its discussion and depiction of female genitalia. In regards to electronic communication, the policy prevents "sexually graphic, threatening or vulgar phone calls, email, text messages, chats or blogs." Under this policy, an email containing an image of Picasso’s Les Demoiselles d’Avignon could be punished because it portrays five nude female prostitutes.
The policy on bias-related conduct is also troublesome. One problematic portion reads: "Harassing conduct can occur in various forms, including … jokes or comments that demean a person on the basis of race, color, religion, ethnicity, national origin, sexual orientation, age or disability." Even serious debate is potentially punishable under this policy. Starting conversations about the recent controversy surrounding Chick-fil-A’s stance on same-sex marriage—whether criticizing, questioning, or supporting it-could result in serious punishment if perceived as offensive or demeaning to some people. Students and faculty could also be punished under the harassment policy for "creating or displaying racially, ethnically, religiously offensive pictures, symbols, cartoons, or graffiti." Thus, illustrations of Muhammad, the founder of Islam, which could be pertinent to debate and discussion on campus, could be punished because they may offend Islamic individuals who believe that pictorial representations are forbidden.
The policy also prohibits "phone calls, emails, text messages, chats or blogs that offend, demean or intimidate another on the basis of race, color, religion, ethnicity, national origin, sexual orientation, age or disability." So any form of electronic communication on campus that contains information that has the potential to offend any student on the basis of any number of their characteristics is banned from campus. Again, because this policy uses language that encompasses so much expression, Colgate students are at risk for being punished for speech that is afforded legal protection by the First Amendment.
Obviously, the examples I have given thus far have been extreme in order to illustrate how the current code could be misused. However, as I have learned over the summer at FIRE, these theoretical examples are not far from reality. In some instances administrators may lack an understanding of what is protected speech and thus misapply their policies. Not only is the language of Colgate’s policy overinclusive in regards to encompassing speech protected by the First Amendment to the Constitution, but the fact that the policy is applied at the discretion of the administration puts Colgate students at risk for unfair punishment: "Colgate also prohibits bias-related student behavior that demeans or humiliates other community members, even if the conduct is not so egregious as to violate the law." The government has never had the right to restrict speech based on what it finds offensive, because such decisions will inevitably be made according to the popularity of the expression at issue and the class being discriminated against. Is there any reason to assume the Colgate administration would be immune to such pressures?
While I do not know of specific incidents in which students have been punished for protected expression on Colgate’s campus, the policy is likely already having an effect on student speech. Colgate’s vague, broad policies may cause people to hesitate to exercise a legitimate right to freedom of speech for fear of disciplinary action. How can a student feel safe expressing ideas on the most difficult issues facing our campus community and even our nation when they could get punished for controversial speech? I know that Colgate is an institution dedicated to the education and protection of its students. Colgate promises this to its students in the very same policy: "The University is committed to the conduct of its affairs in an orderly manner and to maintain a sense of community. It is also committed to the discharge of legal and moral responsibilities, especially as they relate to the rights of freedom of speech and peaceful assembly in the university community." Colgate’s administration should commit to improving our speech code so that it may live up to the ideals that Colgate University represents.