In a new series here on The Torch, FIRE will be examining some of the best “green light” university policies out there. These policies illustrate how colleges and universities can uphold the First Amendment on campus while still preventing unlawful and actionable conduct. Today, we take a look at how Mississippi State University’s harassment policy protects students’ free speech rights and simultaneously addresses true harassment.
As one of the more recent schools to earn an overall green light rating from FIRE, it is no surprise that Mississippi State appears in this series. Indeed, its policy on “Harassment,” found in the Code of Student Conduct, is a model of clarity and precision. In relevant part, the policy prohibits (PDF):
[c]onduct (physical, verbal, graphic, written, or electronic) that is (1) unwelcome; (2) discriminatory on the basis of race, color, religion, sex, national origin, age, disability, genetic information, sexual orientation, or veteran status; (3) directed at an individual; and (4) so severe, pervasive, and objectively offensive that a reasonable person with the same characteristics of the victim would be adversely affected to a degree that interferes with his or her ability to participate in or to realize the intended benefits of an institutional activity, opportunity, or resource.
This definition of harassment matches up almost perfectly with the U.S. Supreme Court’s controlling standard for student-on-student (or “peer”) hostile environment harassment in the educational setting. In Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), the Court held that peer harassment must be unwelcome, discriminatory conduct “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.” By definition, this includes only extreme and usually repetitive behavior—behavior so serious that it would prevent a reasonable person from receiving his or her education.
As the Court’s first (and to date only) decision regarding the substantive standard for peer harassment in education, Davis is not only controlling on this issue—it sets forth a precise, speech-protective standard, one that allows universities to balance their obligations to both protect free speech and prevent actual harassment. Mississippi State’s policy complies with the Court’s decision by incorporating all of the crucial elements of “severe,” “pervasive,” and “objectively offensive” conduct. It also correctly establishes a high threshold for the alleged conduct’s impact on the complaining individual: “adversely affected to a degree that interferes with his or her ability to participate in or to realize the intended benefits of an institutional activity, opportunity, or resource.”
Taken together, the Davis elements help to ensure that a student will not be found guilty of harassment for isolated instances of protected speech, even if they are deeply offensive or controversial to another student or to the university administration. Given how often we encounter the misuse of harassment policies to silence and punish campus expression, such protections are undeniably necessary. As FIRE President Greg Lukianoff has observed, despite years of clarity from the courts, harassment “remains the preferred legal rationale for speech codes.”
So we commend Mississippi State University for maintaining a harassment policy that properly tracks the law and allows the school to simultaneously uphold freedom of speech on campus and prevent unlawful harassment. Other colleges and universities would do well to follow Mississippi State’s example, both in terms of this particular policy and its overall green light rating. Their students would certainly benefit from it.
Image: Mississippi State University campus – Flickr user Jimmy Smith