Over the next six months, FIRE will be exposing the speech codes silencing students at America’s most prestigious colleges and universities.
Although students from around the world compete intensively for the opportunity to live and learn at these institutions, most maintain policies that violate students’ fundamental rights to freedom of expression and freedom of conscience.
Since we believe strongly that prospective students and their families should consider these restrictions—just as they would consider average test scores and faculty/student ratios—when deciding where to apply to school, we want to make this information as accessible as possible. Information about restrictions on speech at over 400 colleges and universities is already available in our Spotlight database, but we also want to draw particular attention to speech restrictions at the top 25 American colleges and universities, since these elite institutions almost uniformly advertise themselves as—and succeed on the basis of their reputations as—centers of free inquiry and debate. To that end, for each of the next 25 weeks, The Torch will include a detailed discussion of the speech codes in force at these top 25 institutions.
Today, we begin with the institution ranked as #25 on U.S. News & World Report‘s list of top national universities: the University of California–Los Angeles (UCLA). UCLA receives FIRE’s "red light" rating for the policies it maintains that restrict student expression. Not just one but several policies at UCLA are constitutionally infirm.
First, UCLA maintains an impermissible speech code that applies to students living in its residence halls. The On Campus Student Handbook‘s "Community Standards" provide:
we will not tolerate any form of bigotry, threats, intimidation, violence or other forms of harassment against any member of our community. In the same manner, we will not accept ignorance, humor, anger, alcohol or substance abuse as an excuse, reason or rationale for such behavior.
This is a classic example of a policy that is overbroad, in that it includes both legitimate and illegitimate restrictions on speech. As a public university bound by the First Amendment to the United States Constitution, UCLA may prohibit true threats, intimidation, violence, and harassment, but it may not prohibit "bigotry," however offensive bigotry may be to most people. The additional provision that "humor" will not be accepted as a rationale for any "bigotry" raises the distinct possibility that students in the residence halls may be susceptible to punishment for engaging in parody and satire that others might find bigoted (such as the satirical newspaper articles on affirmative action and Islamic terrorism for which students at Tufts University were found guilty of harassment).
Second, the University of California’s Policy on Sexual Harassment (which applies not only to UCLA but also to other institutions in the UC system) is also problematic. That policy defines sexual harassment as
unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature, when submission to or rejection of this conduct explicitly or implicitly affects a person’s employment or education, unreasonably interferes with a person’s work or educational performance, or creates an intimidating, hostile or offensive working or learning environment.
To understand what is wrong with this policy, it is necessary to know how the United States Supreme Court has defined peer-on-peer sexual harassment in the educational environment, since only speech that falls within that definition may be prohibited consistent with the First Amendment. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed the issue of student-on-student harassment and held that speech, to fall outside the bounds of protected speech, must be "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit." The UC policy not only contains no requirement of severity or pervasiveness, it even allows speech to be prohibited if it "implicitly affects a person’s employment or education"—a vague definition that could mean almost anything. Under the plain language of this policy, offensive expression that has even the most minor effect on a UC student could be punished as harassment. That is simply unacceptable.
There are additional unconstitutional policies beyond these at UCLA—see UCLA’s entry in Spotlight.
Anyone considering attending UCLA should be aware of the threats to free speech that exist there, threatening students with disciplinary action for protected speech and thereby impoverishing the campus discourse. Tune in next week for information on speech codes at the University of Virginia.