By adopting new policies that threaten to hold bystanders responsible for “bias-related incidents” and “hate speech,” Syracuse University shows yet again that its promises of free speech are wholly unreliable. The new policy language, which went into effect July 1, demonstrates how impermissibly vague policies are just as damaging to free expression as clear restrictions.
Syracuse, a private university that promises students free speech rights, restricts those rights both in policy and in practice. The university has earned a spot on FIRE’s “Worst Colleges for Free Speech” list several times over the past decade, and its speech codes earned our worst, “red light” rating for more than 10 years.
Recent policy changes
Recently, Syracuse made matters even worse by broadening the scope of its “Code of Student Conduct” to bystanders. The revisions added, in part, the bolded text below:
- Assistance, participation in, promotion of, or perpetuation of harassment, whether physical, digital, oral, written or video, including any violation of the Syracuse University Anti-Harassment Policy or Sexual Harassment, Abuse, and Assault Prevention Policy. Bias-related incidents, including instances of hate speech, may qualify as harassment under this Code and the University’s Anti-Harassment Policy.
- Assistance, participation in, promotion of, or perpetuation of conduct, whether physical, electronic, oral, written or video, which threatens the mental health, physical health, or safety of anyone.
The Code doesn’t provide any further information about what constitutes “promotion of” or “perpetuation of” harassment, making the policy exceedingly vague and difficult to follow. If a student stands silently next to a person who is harassing someone, will they also be held responsible? What about if they simply retweet a message that is purportedly part of a pattern of behavior that threatens the “mental health” of another person?
Given that hostile environment harassment typically involves a pattern of repeated conduct, how is a bystander supposed to know that one incident they’re observing is actually the tenth in a series of incidents that has potentially created a hostile environment?
Syracuse’s response doesn’t provide clarity
Chief Diversity and Inclusion Officer Keith A. Alford didn’t provide much clarification in an email about the changes to students, writing that bystanders “can be held accountable,” and directing students to report incidents either to the school’s Office of Equal Opportunity, Inclusion and Resolution Services or anonymously through its bias reporting policy.
If this all sounds unusual to you, that’s because laws punishing “nonfeasance” (or failure to act) absent some preexisting duty of care are rare. For example, if a child is drowning at a public pool, the lifeguard on duty could potentially be held liable for failing to rescue them. But every adult present isn’t suddenly responsible for rescuing the child, as they had no preexisting relationship. A few states have “duty-to-rescue” or “Bad Samaritan” laws that impose a broad duty to rescue during an emergency or to report crimes to authorities, but these are rarely enforced, and their effectiveness is debated.
By vaguely stating that bystanders will be held “accountable” for the “promotion of, or perpetuation of harassment” (including “[b]ias-related incidents” or “hate speech”) or any conduct that subjectively threatens someone’s “mental health,” Syracuse can wield this policy to punish students for simply being in the wrong place at the wrong time.
Some may think that more vague, yellow light policies are not nearly as bad for free speech as those that are clearly restrictive on their face and earn a red light rating, but this policy at Syracuse proves that’s not always true.
Interestingly enough, Syracuse’s bias reporting policy — which directs students to report “expression[s] of hostility” like “jokes based on a stereotype” or “comments on social media about someone’s … political affiliations/beliefs” — provides the following discussion about bystanders:
When you recognize an act of bias, first and foremost, your safety is the priority. If a situation arises where you feel comfortable safely interjecting or intervening, here are some strategies to address bias …
So Syracuse’s own bias reporting policy acknowledges that it isn’t always safe to interject or intervene during an “act of bias,” but students may still be held “accountable” if they are bystanders to a “[b]ias-related incident” under the new policy? Good luck figuring that out.
And since students, faculty, and staff are all encouraged to report incidents to the administration, students risk being subjected to investigation or punishment over protected speech that is reported as a result of these vague and confusing policies.
The problem with “yellow light” speech codes
Here at FIRE, we rate policies that place a clear and substantial restriction on speech as red light policies, while more vague restrictions on speech that invite administrative abuse earn a yellow light rating.
Our most recent Spotlight on Speech Codes report showed that the percentage of schools earning an overall red light rating has steadily decreased over the past decade, meaning the policies that are the most restrictive on their face are being revised. Indeed, Syracuse finally dropped its overall red light rating this year by revising two sexual harassment policies in order to gain compliance with the Department of Education’s new Title IX regulations. But the percentage of yellow light schools has increased each year since our 2009 report, reaching 63.9% this past year, which shows universities aren’t getting the whole job done when revising policies.
Some may think that more vague, yellow light policies are not nearly as bad for free speech as those that are clearly restrictive on their face and earn a red light rating, but this policy at Syracuse proves that’s not always true. Yellow light policy language has been struck down by courts as unconstitutional, costing colleges time and money. And, as this policy demonstrates, these vague policies threaten free expression because they’re bound to have a chilling effect and subject students to burdensome investigations.
Whether policies earn a red light rating or a yellow light rating, they must be revised to uphold the First Amendment or a private institution’s commitment to free expression. FIRE’s Policy Reform team stands ready to assist universities in revising their policies to better protect free speech.