Back in December of last year, FIRE sent a national certified mass mailing to the presidents and general counsels at nearly 300 public colleges and universities. In our letter, we warned university leadership that in light of important legal developments during 2010, the case law regarding university speech codes was even clearer than before, and that institutional leaders and officials risked incurring personal liability for monetary damages if they continued to enact and maintain unconstitutional policies in violation of this body of law.
In response to our mailing, we have received and continued to receive inquiries from a number of these institutions asking how they can revise their policies to bring them up to First Amendment standards. The resulting policy review process has been a useful and rewarding one, as we are happy to inform university officials about their legal obligations under the First Amendment and (at no cost to the universities) to make the suggestions that allow them to do away with their speech codes.
One such exchange for FIRE has been with Michigan Technological University, home to two "red light" sexual harassment policies. Michigan Tech, to its credit, was quick to respond to our mass mailing, replying on January 11 with a request for policy review and analysis. As we informed them in a response letter, while Michigan Tech’s sexual harassment policies were both in clear violation of the First Amendment’s guarantees by restricting a substantial amount of protected speech, the solution is relatively simple. For example, Michigan Tech’s "Sexual Harassment Information" policy states, in relevant part:
Sexual harassment has occurred when the following conditions exist:
1. The behavior is sexual in nature.
2. The behavior is unwelcome.
3. The behavior has the effect of creating a hostile or intimidating environment.
With regard to this policy, we wrote the following:
The Supreme Court of the United States has set forth a strict standard for what constitutes student-on-student (or peer) hostile environment sexual harassment in the educational context, and only a policy that meets that standard is permissible. This exacting standard, set forth in Davis v. Monroe County Board of Education, 526 U.S. 629, 633 (1999), requires the conduct in question to be unwelcome, discriminatory on the basis of gender, and "so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit" to constitute actionable harassment. MTU’s policy fails to include requirements that the behavior in question be severe, pervasive, and objectively offensive, and instead defines hostile environment sexual harassment as conduct that has "the effect of creating a hostile or intimidating environment."
Thus, by simply adopting the Supreme Court’s Davis standard in place of the amorphous and incomplete definition contained in its current Sexual Harassment Information policy, Michigan Tech could appropriately balance its obligations to student free speech with the need to prevent and address actual sexual harassment. Doing so would remove a major impediment to the free exchange of ideas on campus.
With regard to both this policy as well as Michigan Tech’s other red light speech code, a "Sexual Harassment Awareness" policy, our letter also discussed the need to remove purported examples of sexual harassment that in fact encompassed constitutionally protected speech. The Sexual Harassment Awareness policy, for example, declares that sexual harassment at Michigan Tech includes "inappropriate humor," "comments based on someone’s gender or sexual orientation," and "sharing offensive materials that result in a person’s discomfort." As we stated to Michigan Tech, the inclusion of such examples renders the policy both unconstitutionally overbroad and vague.
Happily, Michigan Tech’s response to our policy review, dated July 22, is an encouraging and promising one. In its response, the university states that the two policies in question "were in the process of being reviewed and changed" and that "the items which you address will be removed from all University related publications." This is good news indeed for students and others who wish to speak freely at Michigan Tech, without fear of investigation or punishment. We are glad that Michigan Tech will be making the necessary changes to its speech codes, and when it does we will be happy to update its Spotlight page.
What’s more, Michigan Tech could be in line to be the newest school to receive a green light rating from FIRE, if it improves the two sexual harassment policies to green light policies and does not maintain any other speech codes. Given the relative paucity of green light universities out there (there are currently 15 in our Spotlight database), the transformation from a red light institution to a green light one would truly be a feather in the cap for Michigan Tech. Again, this would be relatively easy for the university to accomplish, as all it has to do is revise the two sexual harassment policies in line with FIRE’s review and analysis.
I, for one, hope to see this change happen soon.