In Monday’s issue of The Guardian, UCSD’s mainstream student newspaper, student journalist Angela Chen reported on the unconstitutional efforts of UCSD administrators to punish students who were involved with a highly controversial "Compton Cookout" party off campus earlier this month. The party was most controversial because of an invitation that asked women to dress and act out a negative stereotypical portrayal of African-American "ghetto chicks."
FIRE has recognized why so many people found the party and the invitation offensive, and we have applauded the efforts of those who have responded with more speech rather than punishment. Yet, we also noted in Tuesday’s letter from FIRE to UCSD Chancellor Marye Anne Fox and Tuesday’s press release that the invitation and related expression at the party constitutes protected speech that cannot be punished by UCSD, a public university bound by the First Amendment.
Unfortunately, Chen reports that administrators have come up with a couple of ideas about how to punish the students anyway, which would violate their right to free expression:
[Vice Chancellor of Student Affairs Penny] Rue said party planners are being investigated for potential violations to the Student Code of Conduct. Section 184.108.40.206 defines harassment as the use of gestures or imagery that creates a hostile environment on campus.
Another potential violation the university is investigating is section 220.127.116.11, which condemns unlawful or unauthorized use of any university property.
Possible sanctions of these breaches range from a letter of censure to expulsion from the university.
What UCSD and its attorneys appear not to know is that section 18.104.22.168 is no longer in force, having been superseded by a new discriminatory harassment policy as of October 2009. (FIRE has a good idea about exactly why the policy was changed at that time, but that is a story to be told later.)
The new policy is in force across the entire University of California System. As President Mark C. Yudof wrote to Chancellor Fox and all other UC chancellors on October 15, 2009, the old policy was problematic for several reasons including "legal vulnerabilities," such as failing to track the actual standard for peer harassment set by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999) that to qualify as sexual harassment, behavior must be "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." Sexually harassing conduct also has to be (1) unwelcome, (2) discriminatory, (3) on the basis of gender, and (4) directed at the complaining individual, and these criteria are pretty much the same when it comes to other kinds of discriminatory harassment.
Thus, President Yudof addressed these issues with the new policy on the advice of General Counsel Charles F. Robinson. The new policy largely tracks the Davis standard with regard to students, and it treats all kinds of discriminatory harassment under the same standard. The new policy completely omits the language of UCSD Section 22.214.171.124, except for a single phrase. You can see the exact words stricken on page 4 of the October 2009 memo.
(The only part not stricken is the provision that before applying the policy to any student conduct, "UCSD officials must consult with the SPJA [Student Policies and Judicial Affairs] Director," who must then consult with the Office of General Counsel in order to properly interpret and apply the policy.)
Here’s the new policy:
Sexual, racial, and other forms of harassment, defined as follows:
Harassment is defined as conduct that is so severe and/or pervasive, and objectively offensive, and that so substantially impairs a person’s access to University programs or activities, that the person is effectively denied equal access to the University’s resources and opportunities on the basis of his or her race, color, national or ethnic origin, alienage, sex, religion, age, sexual orientation, gender identity, marital status, veterans status, physical or mental disability, or perceived membership in any of these classifications.
So it appears that UCSD missed the memo. If the memo was withdrawn, I find no such record of withdrawal in the place where one would expect it. In a "Reaffirmation of UCSD’s Policy on Sexual Harassment," dated January 5, 2010, and sent by Chancellor Fox herself to "all students at UCSD" as well as "all academics and staff," Chancellor Fox referred recipients of her letter to "The University of California systemwide Policy on Sexual Harassment." The document she linked to is dated February 10, 2006—about four years old and now out of date. The key language from that policy also is disavowed on page 4 of the October 2009 memo.
So, UCSD is stuck with the actual UC discriminatory harassment policy—under which neither the party nor the invitation can possibly be construed as actionable harassment.
I guess President Yudof and Chancellor Fox didn’t talk about the memo he had sent her when they apparently discussed these matters around February 18 and Yudof learned that Fox "has also instituted campus disciplinary proceedings." (Let me refer these folks to a good book with a revealing title: Until Proven Innocent.)
Let’s now take a look at how a party invitation for an off-campus event would be analyzed under the new UC standard. Remember, in order to be true harassment and thus stripped of First Amendment protection, the expression and expressive conduct in question must satisfy each of these prongs.
Severe and/or pervasive? Most likely not severe enough, and certainly not pervasive. Severe? The party invitation mockingly referenced many negative stereotypes of African-Americans. While arguably nasty, it is very, very difficult to imagine these comments "so substantially impair[ing] a person’s access to University programs or activities, that the person is effectively denied equal access to the University’s resources and opportunities." Pervasive? The invitation was a one-time deal on Facebook.com, and the party was limited to a single event in one set of residences off campus. Nobody had to go to the party or read the invitation, and if you did, it’s rather likely that you knew ahead of time what you were in for. And so what if you did end up at the party or reading the invitation by mistake? You could leave. What resources or opportunities would you be lacking equal access to?
Objectively offensive? Possibly, but again, certainly not so offensive that it denied "equal access" to campus resources or opportunities.
So substantially impairs a person’s access to University programs or activities, that the person is effectively denied equal access to the University’s resources and opportunities? No. No parties have claimed that students have been "effectively denied equal access" to any UCSD resource or opportunity on account of the party invitation.
Unwelcome? For the complaining students, the party was clearly unwelcome, although hearing about an off-campus party is quite different from being confronted with the party directly, and the bar for a finding of harassment should be far higher when the experience is indirect.
Discriminatory on the basis of race, class, or gender? The party invitation included stereotypes regarding both men and women, so there’s no specific targeting of one gender or the other. Also, the party was open to all regardless of race, class, or gender, and while the invitation focuses explicitly on African-American "ghetto" stereotypes, it is a great stretch to call the expression of stereotypes "discriminatory" for the purposes of evaluating harassment. (This doesn’t mean that the stereotypes weren’t genuinely offensive to a lot of people.)
Directed at a complaining individual? Nope. Even if you got a copy of the invitation, the stereotypes weren’t directed at you.
Therefore UCSD is out of luck when it comes to trying to apply its own harassment policy—which apparently it didn’t even know it had—to the party and party invitation.
Finally, let’s consider a question that isn’t part of the new UC harassment definition, but is useful nonetheless: whether the party detracts from the educational experience. As it turns out, it has done quite the opposite! As subsequent events have shown, the invitation and the party have generated a great deal of engaged expression and debate on campus, furthering everyone’s education. People are debating free speech and several other issues all over campus, and people who were offended by the invitation appear to be winning concessions from UCSD that they believe will improve their educational experience. People who have felt the emotions of hurt and offense can genuinely express that they have had those feelings, but the bar for disciplinary action is much higher than that.
Are Chancellor Fox and her team of attorneys and investigators ready to try "unlawful or unauthorized use of any university property" next? The right answer is to immediately abandon these efforts to punish protected speech on a pretext, and to get back to the business of fighting "offensive" speech with more speech.
TAKE ACTION: Tell UCSD to focus on its own message and stop violating individual rights. Send a letter to UCSD officials here.