Since January, FIRE has been exposing the speech codes silencing students at America’s most prestigious colleges and universities in our "State of Free Speech on Campus" blog series. Today we come to the final institution in our series: Harvard University.
To many, Harvard may be the quintessential liberal arts university. Certainly, the university appears to view itself that way, waxing poetic about the importance of free speech to its core purpose:
Because no other community defines itself so much in terms of knowledge, few others place such a high priority on freedom of speech. As a community, we take certain risks by assigning such a high priority to free speech. We assume that the long-term benefits to our community will outweigh the short-term unpleasant effects of sometimes-noxious views. Because we are a community united by a commitment to rational processes, we do not permit censorship of noxious ideas. We are committed to maintaining a climate in which reason and speech provide the correct response to a disagreeable idea. (Emphasis added.)
In light of these strong statements, it is an understatement to call Harvard hypocritical for maintaining policies that would not pass constitutional muster at any of Massachusetts’ public colleges or universities—policies that earn Harvard a "red light" rating from FIRE for suppressing student speech. For example, the handbook for students in the Faculty of Arts and Sciences (the undergraduate liberal arts college) defines racial harassment as "actions on the part of an individual or group that demean or abuse another individual or group because of racial or ethnic background." Potential examples include "making racially derogatory remarks" and "using racial stereotypes." As Torch readers likely know by now, this definition is a far cry from true harassment, and it prohibits speech that, at any public university, would be protected by the First Amendment. The U.S. Supreme Court has held that to fall outside the bounds of constitutional protection, student-on-student harassment must be 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 (1999). Harvard’s racial harassment policy contains no requirement of severity or pervasiveness, and in fact implies that certain types of protected expression (such as the use of racial stereotypes) might automatically be subject to punishment.
The handbook’s definition of sexual harassment is not much better: "The determination of what constitutes sexual harassment will vary with the particular circumstances, but it may be described generally as unwanted sexual behavior, such as physical contact or verbal comments or suggestions, which adversely affects the working or learning environment of an individual." Although this policy makes a nod to the fact that harassment must actually have an impact on an individual’s learning environment, its standard of "adversely affects" is much broader than the Supreme Court’s "effectively bars the victim’s access" standard. Given that "adversely affects" is not defined, it could mean anything from severe disruption to mere inconvenience or upset. As such, the policy leaves free speech impermissibly vulnerable to punishment.
The handbook also contains a statement on religious harassment, defining it as "actions on the part of an individual or group which demean or abuse another individual because of religious beliefs or that continue after the affected individual has requested a termination of that type of discussion." Although this policy at least acknowledges that harassment must be repeated behavior—i.e., behavior that continues after the victim has requested that it stop—it still does not require anywhere near the degree of severity and pervasiveness required by the Court, and as such infringes on protected speech.
Even Harvard’s Free Speech Guidelines, which extol the university’s unique status and its unique commitment to free speech, take with one hand as they give with the other. The Guidelines state that "Behavior evidently intended to dishonor such characteristics as race, gender, ethnic group, religious belief, or sexual orientation is contrary to the pursuit of inquiry and education. Such grave disrespect for the dignity of others can be punished under existing procedures because it violates a balance of rights on which the University is based." Harvard students wishing to express controversial opinions may well wonder what exactly constitutes "grave disrespect for the dignity of others." And they may, in fact, refrain from expressing those opinions to avoid potential punishment under this ridiculously vague proscription.
It is truly shameful that Harvard, which claims that "free speech is uniquely important to the University," does not actually provide the free speech that it claims is so crucial. Indeed, it is shameful that so many of America’s top colleges and universities, which use their promises of freedom to lure talented students and faculty to study and learn, deny students and faculty the rights they say they will protect.
We hope you have enjoyed our blog series, and we hope you will help us keep the pressure on all of these institutions to live up to their promises and obligations.