As reported by the Rebel Yell student newspaper last week, the University of Nevada, Las Vegas (UNLV) Faculty Senate has approved a new civility policy statement that expresses the university’s intent to foster civil expression on campus. The statement will appear online as a supplement to the university’s existing policy on hate crimes.
The adoption of a civility statement at any university is understandably a matter of concern, given the tendency of many universities to censor and punish campus expression for being "uncivil." Johns Hopkins University, to use one prominent example, finds itself still on our Red Alert list years after it passed a repressive civility policy following the punishment of a student for posting an "offensive" party invitation on Facebook. San Francisco State University settled a First Amendment lawsuit in which the federal magistrate judge rendering the decision tore apart the university’s defense of its speech codes, including a civility policy.
However, comments made to the Rebel Yell by several university figures involved in the adoption of the civility statement make clear that UNLV holds the new statement out as strictly aspirational, and not a mandatory policy that will subject students or faculty to punishment for speech deemed to not be "civil." This is good, and we hope that our understanding is confirmed by the way the university utilizes the policy statement. If it is, dialogue and debate will not be unconstitutionally stifled on UNLV’s campus as a result of the statement’s adoption.
Not only that, UNLV will have provided other universities with a useful example of how to encourage civility or other values among campus constituents without mandating certain values and, in the process, restricting their free speech rights. Given the unconstitutional civility policies we see enacted at various schools, this would be a welcome development indeed. Universities have every right to encourage civil debate and to tout the virtues of such expression, but it is important that they walk that fine line—as UNLV seems to have done here—and make clear that their aspirational expression of institutional values does not come under the pain of disciplinary investigation or punishment and thus deprive students and faculty of their speech rights.
First, a look at the language of the policy statement itself. The Rebel Yell reprints the statement in its entirety:
UNLV is dedicated to intellectual inquiry in its full depth, breadth, abundance, and diversity. Integral to this overarching duty is the essential commitment to academic freedom and personal expression in their fullest manifestations. We embrace the articulation of unpopular and unsettling ideas as an integral part of intellectual inquiry. To the extent it is consistent with the full pursuit of intellectual inquiry, UNLV fosters a civil, respectful, and inclusive academic community defined by a concern for the common good, by developing relationships and a culture that promotes the rights, safety, dignity, and value of every individual. A civil university community, consisting of faculty, staff, students, and external constituents, is vital to the pursuit of excellence in research, scholarship, and creative activity – appreciating what distinguishes us from one another while celebrating that which binds us together.
This is not bad as far as civility statements go, and I am in particular encouraged by the fact that UNLV introduces the statement that it "fosters a civil, respectful, and inclusive academic community" with the qualifier, "To the extent it is consistent with the full pursuit of intellectual inquiry." The policy statement appropriately makes reference to the university’s "essential commitment to academic freedom and personal expression in their fullest manifestations," and otherwise purports to uphold freedom of speech and academic freedom at UNLV.
The Rebel Yell reports that the civility statement is intended to supplement the university’s existing policy on hate crimes (FIRE does not believe that the hate crimes policy intrudes upon protected speech):
Senate Executive Committee member John Filler said that university policy was amended to exclude "bias" from the statement disavowing hate crimes, leaving no language describing a policy of civility in UNLV policy documents.
"By its nature, it does not discuss any kind of speech issues," said UNLV Vice President and General Counsel Richard Linstrom when explaining that the hate crimes policy only deals with criminal activity.
Importantly, Linstrom then goes on to make clear the aspirational nature of the civility statement:
Unlike that document, the new statement of civility will not be actionable in the case of violation.
"There’s no way you could be disciplined for being uncivil because I don’t even know what civility is," Linstrom said, explaining that the statement does not attempt to define "civil" but rather expresses a sense of value for whatever "civility" is.
"It’s really not policy," Linstrom said. "It’s a statement."
Linstrom has it right. "Civility" as a concept is inherently vague and prone to shifting understandings, since what seems uncivil to one person may be perfectly civil to another. So, while a university is within its rights to encourage students and faculty to express themselves in civil ways if it wishes to do so, it may not, consistent with the First Amendment, require civility at all times under pain of investigation or punishment. Linstrom and Filler seem to get this:
Linstrom explained that because an individual could not be punished based on the statement alone, it is unlikely to inhibit academic freedom.
But he implied that if the idea could be enforced, there might be a concern when it comes to academic freedom.
"I myself have not been able to find a way [to enforce the statement] that doesn’t ultimately impinge on academic freedom-type issues," Linstrom said.
Filler explained that his intent in calling for the drafting of a statement was not to set up sanctions but to express a general will toward civility.
If these statements truly reflect UNLV’s understanding of the civility policy statement and how it is to be utilized in the future, that is good news for speakers on UNLV’s campus.
At the same time, UNLV remains a red-light school in our Spotlight database, so there is still cause for concern. The university especially should take a look at its red-light "Statement on Diversity in the University Community," which prohibits "disrespect for persons" arising from a list of enumerated characteristics. UNLV’s ban on "disrespect" arguably takes on even greater weight with the adoption of the new policy statement on civility, even if the latter is entirely aspirational. We will be following the free speech situation at UNLV closely and, as always, will be sure to report any new developments.