This winter, FIRE is presenting a blog series on the state of free speech at America’s top 10 liberal arts colleges, as ranked by U.S. News & World Report (a list that actually includes 11 schools, since two—Claremont McKenna College and Vassar College—are tied for the #10 spot). Before the new year, we told you about speech codes at Williams College. Today, we kick off 2013 with a discussion of the state of free speech at Amherst College in Massachusetts.
Like Williams, Amherst receives a “yellow light” rating from FIRE, because several of its policies could too easily be abused to punish protected speech. Although Amherst is a private institution, it promises (PDF) its students “the assurance of the full exercise” of “[t]he right to engage in the free exchange of ideas.” As a result, students attending Amherst would almost certainly expect to have the same expressive rights as their counterparts at Massachusetts’ public colleges and universities. Several of the college’s policies, however, infringe on those expressive rights.
We turn first to the College Council Statement on Sexual Harassment (PDF), found in the college’s Student Handbook. The statement defines sexual harassment, in relevant part, as:
Unwelcome sexual advances, requests for sexual favors and other unwelcome verbal or physical conduct of a sexual nature constitute sexual harassment when: … (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance, or creating an intimidating, hostile or demeaning working, academic or social environment.
This definition could be improved. The policy language tracks the law of workplace harassment, but the Supreme Court has set forth a more speech-protective standard for student-on-student (or peer) harassment in the educational setting. According to the Court’s decision in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), peer harassment in the educational context is conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Amherst’s definition lacks the requirements of severity and pervasiveness that characterize peer harassment in the educational setting, and should be revised to be consistent with the Davis standard.
While there is room for improvement in the definition, the more serious problem with the policy is found in other language suggesting that sexual harassment can be “subtle and indirect,” even occurring “unintentionally.” In reality, it would be very difficult (if not altogether impossible) for subtle, indirect, unintentional behavior to rise to the level of severity and pervasiveness necessary to constitute actual harassment. By suggesting to students that they might engage in harassing behavior without even knowing it, this policy almost certainly has a chilling effect on student expression around issues of gender and sexuality—issues that should be able to be freely discussed on a college campus.
Another problematic policy is the “Statement on Respect for Persons” (PDF), found in the college’s Honor Code. This policy provides that:
Respect for the rights, dignity and integrity of others is essential for the well-being of a community. Actions by any persons which do not reflect such respect for others are damaging to each member of the community and hence damaging to Amherst College. Each member of the community should be free from interference, discrimination, intimidation, sexual harassment, or disparagement in the classroom, the social, recreational, and residential environment or the work place.
The policy also prohibits “verbal abuse” on the basis of “race, color, religion, national origin, ethnic identification, age, political affiliation or belief, sexual orientation, gender, economic status, or physical or mental disability.”
While some of the conduct prohibited by this policy—discrimination, intimidation, sexual harassment—is not protected speech (when properly defined), other portions of the policy are so vaguely written that they could too easily be used to punish protected speech. Most speech that is “disparaging,” for example, is still constitutionally protected. And it is impossible to know what the college might mean by “verbal abuse” or “interference.” Could a heated political discussion that leaves one party feeling hurt or offended constitute “verbal abuse on the basis of … political affiliation or belief”?
The Supreme Court held in Grayned v. City of Rockford, 408 U.S. 104, 108 (1972), that a law must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” otherwise the law is unconstitutionally vague. The Court went on to state that “where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.'” Grayned, 408 U.S. at 109 (internal citations omitted). In other words, when faced with a policy that sounds like it might prohibit protected speech, students will self-censor rather than risk punishment, leading to an impermissible chilling effect on free expression.
Along similar lines, Amherst prohibits (PDF) the use of computing facilities to send “abusive” messages. But as with the previous policy, students have no way to know in advance what the university will deem “abusive.” The term could refer only to the kind of severe and repetitive abuse that rises to the level of actual harassment (which would not be protected), but it could also refer to a harshly worded argument that occurs in the course of a heated debate (which almost certainly would be protected).
While Amherst maintains several problematic policies, it could easily earn FIRE’s highest, “green light,” rating by making a few simple revisions to clarify that protected speech will not be subject to punishment. We hope the college will consider making these changes, and we are always available to help.