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 the University of Pennsylvania, which receives a green-light rating. A green-light rating means that FIRE has found no policies that seriously imperil student speech on campus. However, a green-light rating does not imply perfection; there may still be room for improvement even at a university whose policies do not pose a serious threat to free speech. In fact, there is room for improvement in Penn’s policies, and we will explain today what the university should do to even better protect free speech on campus.
Overall, Penn’s policies are very supportive of free speech on campus. However, as many long-time FIRE supporters know, getting to this point has been a long and difficult road. After all, Penn was home to the infamous "water buffalo incident," which began the series of events that ultimately led Penn professor Alan Charles Kors and Boston attorney Harvey Silverglate to found FIRE. Thanks in large part to Kors’ constant vigilance, Penn’s policies over the years have grown increasingly protective of free speech. And the university is well aware that, because of its unique role in FIRE’s history, FIRE will always have a very close eye trained on its policies. To date, Penn’s administration has been very responsive to any concerns FIRE has expressed about free speech on campus. For example, in 2006, FIRE learned that Penn had introduced a Sexual Harassment Handbook that listed protected expression—such as "sexual innuendoes" and "comments about the sensuality of a person" as examples of sexual harassment. FIRE President Greg Lukianoff immediately wrote to Penn President Amy Gutmann, commending Penn on its overall support for free speech but stating, in no uncertain terms, that this unacceptable new policy threatened free speech on campus (and, accordingly, Penn’s hard-won green-light rating). Penn’s general counsel quickly responded to Greg, letting him know that the policy had been removed from Penn’s website and was being revised. The current Sexual Harassment Handbook does not impermissibly threaten free speech, including as potential examples only continuous, persistent verbal conduct.
With this history in mind, we now turn to those policies at Penn that have the potential to impact free speech on campus. First, as with all private universities, we look at what voluntary commitments the university has made to protect free speech rights. At Penn, such commitments abound. First and foremost are the university’s Guidelines on Open Expression, which state that
The University of Pennsylvania, as a community of scholars, affirms, supports and cherishes the concepts of freedom of thought, inquiry, speech, and lawful assembly. The freedom to experiment, to present and examine alternative data and theories; the freedom to hear, express, and debate various views; and the freedom to voice criticism of existing practices and values are fundamental rights that must be upheld and practiced by the University in a free society.
The Guidelines firmly commit the university to protecting free speech, and also explicitly provide that "In case of conflict between the principles of the Guidelines on Open Expression and other University policies, the principles of the Guidelines shall take precedence."
Penn’s Code of Student Conduct also contains an explicit commitment to protect free speech, providing that the rights afforded to every student on campus include "the right to freedom of thought and expression." The Code also states that "the content of student speech or expression is not by itself a basis for disciplinary action."
While Penn is prohibited by its own Guidelines on Open Expression from punishing protected speech, and while the university’s policies are generally consistent with these Guidelines, there are several policies that—while not seriously imperiling free speech on campus—would benefit from improvement. First and foremost among these is the university’s sexual harassment policy. Most troubling is a statement, in the policy’s introduction, that "We expect members of our University community to demonstrate a basic generosity of spirit that precludes expressions of bigotry." In the context of introductory language, this statement appears to be aspirational, but the use of the word "expect" does raise the question of whether "expressions of bigotry" could possibly be subject to disciplinary action at Penn. While the Guidelines on Open Expression—which are controlling on all questions of free speech—and the university’s Code of Conduct explicitly provide that protected expression cannot result in disciplinary action, a student reading the sexual harassment policy could be misled by this language and refrain from protected speech that might be perceived as "bigoted" for fear of punishment. Such a result would be wholly unacceptable at a university committed to free expression. Thus, FIRE urges Penn to immediately revise this language to clarify its aspirational nature; "we hope members of our University community will demontrate a basic generosity of spirit…" or "we urge members of our University community to demonstrate a basic generosity of spirit…" are better alternatives.
Penn’s definition of sexual harassment would also benefit from revision. Sexual harassment at Penn is defined as "any unwanted sexual attention that: … 2. Has the purpose or effect of interfering with an individual’s academic or work performance; and/or; 3. Creates an intimidating or offensive academic, living or work environment." While Penn has obviously made an effort to track the applicable standards of sexual harassment law with this policy, the fact is that the standards which appropriately govern sexual harassment in the workplace are inappropriate for the educational context, where speech should be far less restricted. What this policy is missing, to properly adapt it to the educational context, is a requirement that the conduct be severe, pervasive, and objectively offensive (the standard for student-on-student harassment set forth by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999).) The university is aware of this standard—it is cited in the Sexual Harassment Handbook-and it needs to be incorporated directly into the policy.
Finally, Penn’s policy on facilities use raises the question of whether any demonstrations or protests may take place on campus without prior reservation. That policy provides that
Depending on the location of an outdoor event, on scheduled classes in nearby buildings, and on the proximity of offices in use, non-conflicting activities should be scheduled by prior arrangements with the Perelman Quad and VPUL Facilities staff.
It is unclear from the language of this policy whether all outdoor events require prior arrangements (which would be inappropriate), or just ones in certain locations that might conflict with scheduled classes or other essential educational activities (which is acceptable). As a university that values free speech, Penn must allow for spontaneous outdoor demonstrations and other expressive activities by university community members so long as the expressive activities do not interfere with university business, and its policies must make this clear.
Stay tuned next week for information on the state of free speech at Cal Tech.
Schools: University of Pennsylvania