Good news out of the University of Idaho: the administration has revised a residence hall harassment policy that FIRE named our Speech Code of the Month in September 2009.
Before it was revised, the policy provided that "Actions and/or communication that are discriminatory, harassing or insensitive are not permitted." We wrote at the time that
This policy prohibits a staggering amount of constitutionally protected speech. In fact, this policy prohibits precisely the speech that the First Amendment exists to protect, since people typically do not seek to censor sensitive, respectful expression. Moving beyond the legal issues, speech codes like this one infantilize college students by assuming they cannot cope with any sort of offense. Do we really want to teach our students that they are entitled to seek punishment for others’ insensitivity?
Thankfully, the 2010-2011 version of the Residence Hall Handbook contains a revised harassment policy which now provides that "Actions and/or communication that are discriminatory or harassing are not permitted." Insensitivity is no longer a punishable offense at the University of Idaho, and that is a very good thing. We commend the administration for making this necessary and important change.
Unfortunately, all is not yet well for free speech at Idaho. First, the university still maintains a number of other speech codes that clearly and substantially prohibit protected speech, earning it a "red light" rating in our Spotlight database. The Office of Human Rights Compliance provides a list of behaviors that constitute sexual harassment including, among other things, "’Humor’ or ‘jokes’ about sex or gender-related characteristics." And the university’s Computer Use Policy prohibits "messages that are libelous, patently offensive, or that intimidate, threaten, demean or harass individuals or groups, or that would otherwise bring discredit to the university."
What’s more, the university has a history of using otherwise legitimate policies to threaten protected speech. In April, the university charged a student with "discrimination" under the Student Conduct Code for making "statements denigrating an ethnic group." The Student Conduct Code’s discrimination provision prohibits "Practices or regulations that discriminate on the basis of race, color, national origin, religion, sex, age, disability, or status as a Vietnam-era veteran." On its face, this policy is not troublesome—discriminatory practices are and should be illegal—but it is unconstitutional to apply it to offensive but protected speech such as denigrating remarks.
So while we commend Idaho for taking an important stride towards protecting students’ free speech rights, the university must still both revise its facially unconstitutional speech codes and ensure that, in practice, students will not be charged with disciplinary violations for engaging in protected expression. We hope to report more good news on these fronts in the near future.