Zoe Kuenstler is a FIRE summer intern.
One needs only to flip five pages into the University of Pittsburgh’s Student Code of Conduct and Judicial Procedures to find “The Pitt Promise: A Commitment to Civility” (the “Pitt Promise,” or “the Promise”)—a list of pedagogical principles and values to which students are expected to adhere. In principle, the pledge is morally sound and perhaps desirable, but, as FIRE has explained, mandating civility clauses infringes on students’ First Amendment rights. As a current student at the University of Pittsburgh, a public institution of higher education that is bound by the Constitution, it concerns me that the university has enacted a policy that so clearly infringes on its students’ rights.
While the Pitt Promise was no doubt drafted with the best of intentions, the wording is problematic from a constitutional standpoint. The prelude to the Promise states that “[b]y choosing to join this community, I accept the obligation to live by these common values and commit myself to the following principles,” and then goes on to list a series of behavioral demands. The list then concludes with the language “[b]y endorsing these common principles, I accept a moral obligation to behave in ways that contribute to a civil campus and resolve to support this behavior in others.”
The use of the word “obligation” throughout signifies that students must abide by these terms and act in a manner that the administration deems “civil” or risk disciplinary action. Pitt fails to specifically define uncivil speech in the Promise and in itself vagueness is an issue. It is important to note that a great deal of speech that some might find “uncivil” is protected by the First Amendment as evidenced by case law; Cohen v. California (1971) holds that merely offensive speech is protected speech, while Brandenburg v. Ohio (1969) holds that violent speech is protected as long as it does not incite people to violence. The Promise ensures students that “The University of Pittsburgh is committed to the advancement of learning,” but how is a student supposed to advance their learning while operating within over-broad guidelines that chill certain types of speech on campus?
Thus, the Promise highlights the conflict between a university’s desire to maintain an environment of “civility” (however defined) on campus and a university’s legal obligation to uphold the First Amendment in the interest of academic freedom and exploration. It is this precise conflict that lies at the heart of College Republicans at San Francisco State University v. Reed (2007), a federal case which persuasively sets forth the legal reasoning that renders civility clauses, such as the Promise, unconstitutional. The court ruled that San Francisco State University’s policy requiring students “to be civil to one another and to others in the campus community” was unconstitutional on the basis that “there is a substantial risk that the civility requirement will inhibit or deter use of the forms and means of communication that, to many speakers in circumstances of the greatest First Amendment sensitivity, will be the most valued and effective.” Pitt’s prohibition of uncivil speech stands in defiance to this ruling and must be remedied accordingly.
The good news for Pitt is that there are success stories that Pitt can emulate. Pitt simply needs to modify its language so students are encouraged (instead of obligated) to emulate these values in their everyday interactions while at the same time enjoying free exercise of their First Amendment rights.
I’d also like my administrators at the University of Pittsburgh to take note that we currently receive a ”yellow light” rating from FIRE, which means that our speech policies are not completely in compliance with the First Amendment. By revising our policies, Pitt could achieve “green light” status, as Pitt already enjoys a number of green light policies. It should be extra incentive to Pitt students that Penn State followed FIRE’s suggestions and modified its very own civility mandate to make it non-mandatory, gaining FIRE’s high praise. Let’s give FIRE a reason to praise us as well and Hail to Pitt!
Maintaining civility on campus should be a goal shared by students and administrators alike, but it’s a goal that must be achieved without encroaching on students’ speech rights. The Reed decision highlights this distinction by noting:
The First Amendment difficulty with this kind of mandate should be obvious: the requirement “to be civil to one another” and the directive to eschew behaviors that are not consistent with “good citizenship” reasonably can be understood as prohibiting the kind of communication that it is necessary to use to convey the full emotional power with which a speaker embraces her ideas or the intensity and richness of the feelings that attach her to a cause.
What is a university if not a place where students can passionately dissent, disagree, and debate? Our society will be more civil because universities serve this function—not in spite of it.