Throughout the spring semester, FIRE is drawing special attention to the state of free speech at America’s top 25 national universities (as ranked by U.S. News & World Report). Today we review policies at Columbia University, which FIRE has given a red-light rating for maintaining policies that clearly and substantially restrict free expression on campus.
Since Columbia is a private university, we look first at what commitments Columbia has made to protect the right to free speech. We need not look far; Columbia’s Rules of University Conduct explicitly state that
While the University as a private institution is not subject to the Constitutional provisions on free speech and due process of law, the University by its nature is dedicated to the free expression of ideas and to evenhanded and fair dealing with all with whom it conducts its affairs.
Anyone reading this provision is likely to believe—and with good reason—that Columbia has chosen to protect free speech as an important university value. Accordingly, students on Columbia’s campus may reasonably expect that they are entitled to the same free speech rights they would have at any of New York’s public universities.
Most of Columbia’s policies are actually not that restrictive of free speech on campus. However, there is one document that poses such a serious threat to free expression that it is solely responsible for the university’s red-light rating. That document can be found on the university’s Health Services website, where Columbia maintains a series of fact sheets specifically for students on a variety of health-related topics. The fact sheet on sexual harassment defines "sexual harassment" as "any unwanted sexual attention." It then discusses the two categories of sexual harassment—quid pro quo and hostile environment—and states that an example of hostile environment harassment is "offensive conduct or comments." Further examples of sexual harassment include "sexist jokes or cartoons," "sexual innuendoes," and "love letters."
While the university’s official harassment policy is not problematic, this ancillary material—designed specifically to provide students with further information about sexual harassment—completely confuses what behavior constitutes actual harassment and virtually guarantees that students will believe constitutionally protected expression is prohibited at the university. Most "offensive comments," "sexist jokes," and so forth are entirely protected; genuine harassment includes only conduct "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit," Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999). This confusion will have two impermissible consequences: First, students will refrain from engaging in protected expression based on the wholly reasonable assumption that the expression described in the fact sheet is prohibited at Columbia; and second, students will make claims of sexual harassment based on the fact sheet definition, leading to the investigation of protected speech on Columbia’s campus.
The sexual harassment fact sheet is by far the most dangerous policy at Columbia. However, there is one other policy that would benefit from revision, and that is the university’s policy on e-mail usage. That policy prohibits "Nuisance e-mail or other online messages such as chain letters, obscene, harassing, or other unwelcome messages." This is an extremely broad prohibition, since by its plain language it could potentially lead to disciplinary action for any "unwelcome messages." Because of its breadth, this policy is susceptible to abuse and could easily be applied selectively to censor unpopular viewpoints. For example, a student at Columbia could, under this policy, find him- or herself in a situation similar to Jihad Daniel at William Paterson University. Daniel, Torch readers may remember, was punished for describing homosexuality as a "perversion" in a private response to a professor’s unsolicited announcement of a university event that promoted a positive view of lesbian relationships. Such an e-mail, or any other e-mail viewed by its recipient as "unwelcome," is potentially subject to disciplinary action at Columbia, creating a dangerous situation for free and open discourse on campus.
Also problematic is the policy’s statement that "Unsolicited e-mail messages to multiple users are prohibited unless explicitly approved by the appropriate University authority." While this provision is presumably intended to deal with spam, it is also dangerously broad. FIRE has recently seen—in a case at Michigan State University—that even a seemingly innocuous policy such as this can be abused to silence speech critical of the university administration (or controversial speech of any kind.) Therefore, we recommend that bulk e-mail guidelines be carefully drafted so as not to allow for an abuse of discretion like the one that happened at MSU. Columbia’s policy, which prohibits spam only in general terms, could be vulnerable to this type of abuse, and thus should be further refined.
Stay tuned next week for information on the state of free speech at the University of Pennsylvania.