Yesterday, FIRE announced the publication of Correcting Common Mistakes in Campus Speech Policies, a short handbook designed to help university administrators identify and remedy the errors FIRE most often sees when reviewing policies that govern student and faculty speech. It is available in full both online and in PDF form, and we will be distributing hard copies of Correcting Common Mistakes to administrators and university presidents in the upcoming months, both via mail and at venues including the Association for Student Conduct Administration’s annual conference in February.
Truth be told, Correcting Common Mistakes was born of the frustration of seeing the same old misguided restrictions on speech maintained by school after school after school. My colleague and co-author Samantha Harris reviews over 350 speech policies every year, going over university handbooks and codes of conduct with a fine-toothed comb to determine whether or not policies restrict speech protected by the First Amendment (at public institutions) or the university’s promises of free expression (at private institutions). An attorney and an expert in First Amendment law, Sam has been reviewing policies for FIRE’s comprehensive speech code database Spotlight: The Campus Freedom Resource for the last five years-so you can imagine how disheartening it can be for her to continue to see the same simple mistakes replicated again and again. Sometimes, Sam’s job can feel like the movie Groundhog Day with Sam where Bill Murray’s character would be. Pretty rough.
For ready example of some of these recurring mistakes, Correcting Common Mistakes discusses the problem with university harassment policies that include lists of examples of "harassing" behavior. Check out Davidson College’s examples list, which prohibits "degrading words used to describe an individual or group of persons," "hostile personal or gender related remarks," "derogatory or dismissive comments," "comments or inquiries about dating," and "patronizing remarks," such as calling an adult "girl," "boy," "hunk," "doll," "honey," or "sweetie." That’s similar to Brown University’s examples list, which prohibits "jokes or innuendoes," "insulting sounds," and visual displays "that may embarrass or offend." And these lists are similar to Oklahoma State University‘s list, which prohibits "[c]alling a person a ‘hunk,’ ‘doll,’ ‘babe,’ ‘sugar,’ or ‘honey,’ or similar descriptive terms" and "[m]aking offensive sounds."
The problem is that each of these laundry lists includes instances of protected speech. As Sam and I explain:
Lists of examples like this are highly misleading. While it is theoretically possible that such behaviors could be components of sexual harassment if they rose to the necessary level of severity and pervasiveness, most offensive or derogatory comments (and terms of endearment) are, in fact, protected speech. As courts have held in cases too numerous to mention, the fact that expression is offensive does not strip it of constitutional protection. To actually constitute harassment, speech must go far beyond causing offense; it must genuinely interfere with a reasonable person’s ability to participate in the educational process.
Believe me, this is just the tip of the iceberg; many, many schools maintain similar examples lists, without the necessary qualifications explained above. And for each of the common problems we cover in Correcting Common Mistakes, it’s the same pattern: dozens of schools maintain similarly flawed policies.
In response to seeing the same mistakes ad nauseum, Sam and I decided that FIRE needed to produce a pragmatic, accessible guide to help administrators rid their policies of these recurring problems-hence, Correcting Common Mistakes. It is FIRE’s sincere hope that this short manual will prove informative and helpful to those administrators-and we know they’re out there-who sincerely want to make sure that their policies are in line with either the First Amendment or their university’s promises of free expression.
As always, FIRE stands ready to help-so if any university administrators or presidents or deans of student conduct are reading this and want to know how they can make their school a "green light" on Spotlight, just give me a call.