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Memorandum To: Mike Theodore, Northern Illinois University From: Azhar Majeed, Foundation for Individual Rights in Education Re: Northern Illinois University Speech Codes Date: September 11, 2012 Introduction Northern Illinois University (NIU) currently maintains six policies that restrict students’ freedom of speech under the First Amendment. Three of these policies earn a speech code rating of “red light” from the Foundation for Individual Rights in Education (FIRE; thefire.org), which denotes that the policies in question both clearly and substantially restrict freedom of speech. The other three policies earn a rating of “yellow light,” which denotes that the policies ban or excessively regulate constitutionally protected speech and too easily encourage administrative abuse and arbitrary application. As a public institution bound both legally and morally by the First Amendment, NIU’s continued maintenance of these policies violates its obligation to uphold students’ freedom of speech. The good news is that if NIU were to revise its red light and yellow light policies, the university would earn an overall “green light” rating from FIRE. By so doing, NIU would join a select group of colleges and universities nationwide that do not maintain any policy restrictions on protected student speech. This would be a proud achievement for NIU. FIRE is more than willing to help make these revisions, and, once completed, we would be pleased to publicly praise NIU in a national press release. Of course, FIRE is hopeful that NIU will reform its speech codes in light of the university’s commendable decision to revise a policy we named as our “Speech Code of the Month” in August 2009. We were pleased that NIU chose to reform that speech code, a policy on “Harassment” that prohibited much constitutionally protected speech, and we hope that NIU will likewise see fit to revise its remaining speech codes as well. We will now examine each of the university’s speech codes in turn. I. Non-Discrimination/Harassment Policy (Red Light) 2 Policy: 1. Policy Violation on the basis of Race - occurs when differences in employment/academic decisions are based upon the employee’s/student’s race. Conduct prohibited by this policy includes, but is not limited to, the use of racial slurs, graffiti, or ethnic jokes that create a hostile or abusive working environment. Typically, a hostile environment is created only when the discrimination or harassment is severe and alters the conditions of the victim’s employment/academic environment. The occasional improper comment and/or joke, generally, will not create such a hostile environment and/or be indicative of racial discrimination unless such conduct is severe, pervasive, and/or occurs on a frequent basis. […] Examples of age related discrimination includes, but is not limited to, characterizations, stereotypes, jokes, or insults regarding the employee’s/student’s age, poor health, and/or medical conditions, forced retirement, and the use of any derogatory terms regarding age. […] 7. Policy Violation on the basis of Sexual Orientation - occurs when employment/academic decisions are based upon or biased because the employee’s/student’s sexual orientation is or is perceived to be heterosexual, lesbian, gay, bisexual, or transgender. Examples of conduct prohibited by this policy includes, but is not limited to, offensive language, mockery, verbal threats, damage to personal property, and physical violence or harassment. Analysis: This policy violates students’ free speech rights in a number of ways and thus earns a red light rating from FIRE. First, the policy as written is unconstitutionally vague. The Supreme Court of the United States wrote in Connally v. General Construction Co., 269 U.S. 385, 391 (1926), that a law is impermissible when it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” The use of terms such as “characterizations,” “stereotypes,” “derogatory terms,” “offensive language,” and “mockery” gives no guidance to students about how to conform their behavior to these rules. Opinions will necessarily differ regarding what constitutes a stereotype, what terms are derogatory, what language is offensive, what speech is mocking, and so forth. This creates grave potential for selective and arbitrary application, as students with less popular viewpoints are more likely to garner criticism and accusations under this policy. There is simply no way for a student to reasonably interpret and comply with these rules. 3 The policy’s vagueness unfortunately chills much protected speech on campus. The Supreme Court has noted that “[W]here a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘steer far wider of the unlawful zone … than if the boundaries of the forbidden areas were clearly marked.’” Grayned v. City of Rockford, 408 U.S. 104,109 (1972) (internal citations omitted). In order to avoid being punished under the policy’s amorphous bans, a student will have no choice but to avoid entire topics and viewpoints altogether rather than risk offending someone and suffering punishment. When a rule is so vague that fear of punishment chills other constitutionally protected speech, that rule violates the Constitution. Second, the categories of speech prohibited by the policy include a substantial amount of speech that is protected by the First Amendment, such as “jokes,” “insults,” “offensive language,” and “mockery.” The Supreme Court has repeatedly made clear that speech that is offensive, insulting, mocking, bigoted, or otherwise distasteful to the listener or the government is nevertheless almost always protected. See, e.g., Terminiello v. Chicago, 337 U.S. 1, 4 (1949) (stating that the First Amendment exists to protect speech that “induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger”). NIU, as a public institution, is wholly bound by the First Amendment; the university may not promulgate rules that determine the permissibility of speech based on whether the viewpoint expressed or the terms used offend the subjective sensibilities of others. The Supreme Court has set forth a controlling standard for student-on-student (or peer) harassment in the educational context. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999), the Supreme Court ruled that peer harassment is only that conduct which is (1) unwelcome; (2) discriminatory; (3) on the basis of a protected class such as race or gender; (4) directed at the complaining individual; and (5) “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.” This stringent, speech-protective standard properly balances schools’ obligations to address true peer harassment while upholding students’ free speech rights. NIU’s policy does not meet this standard. The policy does not require that the conduct be unwelcome; indeed, by its inclusion of such expression as “jokes” and “stereotypes,” and its lack of a requirement that the speech be directed at the complaining student, NIU is guaranteeing that speech between welcoming participants will fall under this policy, extending it from a prohibition on actionable harassment to an unconstitutional restriction on speech. Most worryingly, the NIU policy is not limited to “severe, pervasive, and objectively offensive” conduct that effectively denies the victim equal access to the institution. Without this restriction, the NIU policy covers virtually any offhand remark that evokes disapproval or hurt feelings. NIU must adopt the Supreme Court’s Davis standard, ensuring the proper balance between free speech and students’ right to be free from harassment. 4 II. Sexual Harassment (Red Light) Policy: 8. Policy Violation on the basis of Sexual Harassment – occurs when sexual behavior or requests for sexual favors: • Are made either explicitly or implicitly a term or condition of employment or educational performance. • Are made as the basis of employment or academic decisions affecting the individual as an employee or a student. • Have the express purpose or effect of substantially interfering with an individual’s work/academic performance or creates an intimidating, hostile or offensive working academic environment. […] In order for the conduct to be considered sexual harassment, the behavior must be: • Unwanted or unwelcome; • Sexual in nature or related to the sex or gender of the employee/student; • Sufficiently severe or pervasive to alter the conditions of the recipient’s employment or education. Examples of sexual harassment in employment or education include, but are not limited to, uninvited sexual comments or innuendo, oral, written, or electronic communications that are sexually explicit in nature or sexually explicit questions, jokes, or anecdotes about gender specific traits.” Analysis: This policy violates students’ free speech rights and thus earns a red light rating from FIRE. This policy, like the harassment policy discussed above, fails to follow the Supreme Court’s Davis standard for peer harassment. These requirements are, again, that the speech be unwelcome, discriminatory, based on a protected class, directed at the complaining party, and “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.” Davis, 526 U.S. at 652. Instead of requiring that actionable conduct be discriminatory based on a protected class, the NIU policy broadly covers conduct that is “[s]exual in nature or related to the sex or gender of the employee/student.” This policy prohibits a large swath of protected speech, rendering the restriction likely unconstitutional. Indeed, the United States Court of 5 Appeals for the Third Circuit invalidated a campus sexual harassment policy at Temple University in part because the policy included conduct that was of a “gender-motivated nature,” which the court determined encompassed too much core protected speech. See DeJohn v. Temple University, 537 F.3d 301, 318 (3d Cir. 2008). While NIU is not within the Third Circuit’s jurisdiction and DeJohn is therefore not binding on NIU, it is nevertheless persuasive precedent and should be granted considerable weight in assessing the constitutionality of NIU’s policy. The NIU policy also fails to limit its definition of sexual harassment to conduct directed against the complaining individual. This means a student may be disciplined for violating this procedure if a private conversation between two individuals is overheard, even without knowledge of that possibility on the part of the speaking students. Next, the policy errs in prohibiting conduct having “the express purpose or effect” of interfering with an individual’s academic performance or creating an “intimidating, hostile or offensive” academic environment. The sexual harassment policy invalidated by the Third Circuit in DeJohn contained a similar provision stating that conduct constituted sexual harassment if it had the “purpose or effect of unreasonably interfering with an individual's work, educational performance, or status; or … such conduct has the purpose or effect of creating an intimidating, hostile, or offensive environment.” See DeJohn, 537 F.3d at 319–20. The Third Circuit ruled that a sexual harassment policy that punishes mere “purpose” without a showing of the required impact upon the complainant unconstitutionally suppresses core speech. The close similarity between the NIU policy and the one found unconstitutional in DeJohn, as well as existing Supreme Court precedent in Davis, should convince NIU to change its policy to match the Davis standard. Finally, the sexual harassment policy is too subjective and inclusive in its requirement that the conduct be “[s]ufficiently severe or pervasive to alter the conditions of the recipient’s employment or education.” This standard falls short of the Supreme Court’s requirement that conduct be so “severe, pervasive, and objectively offensive” that “the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis, 526 U.S. at 651 (emphasis added). It is important to include the “objectively offensive” requirement because it adds a “reasonableness” element to consideration of the conduct in question. This prevents the policy from being abused by unreasonably hypersensitive individuals, a concern especially important in a setting as reliant on the free and open exchange of ideas as a university. By adopting the Davis language in its entirety, NIU would be complying with the First Amendment and ensuring that only conduct having the type of impact set forth in Davis is punishable under this policy. III. Bias and Harassment-based Incident Reporting Protocol in the Halls (Red Light) Policy: 6 Community Advisor Staff: CAs are direct responders to resident bias incidents. They report all incidents of identity-based bias (ability, race, religious, gender, sexual orientation/gender identity) on floors including: verbal comments overheard, written (dry erase comments, signs, graffiti), and online (social networking site comments, messages, posts, blogs, etc.). After the incident is reported, CAs work with the Bias Incidents Team and hall staff to follow up with involved parties, explaining why these types of incidents are not tolerated, and revisit Community Standards. CAs may do additional follow up as applicable and suggested by hall staff/Bias Incidents Team. Analysis: This policy violates students’ free speech rights and thus earns a red light rating from FIRE. First, this policy is unconstitutionally vague. The Supreme Court has made clear that a regulation must provide notice as to what actions it prohibits. See, e.g., Grayned v City of Rockford, 408 U.S. 104, 108 (1972) (stating that laws must “give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”). This residence hall policy gives students no real guidance about what behavior will give rise to an investigation and possible adverse action by the university. Providing a term with no clear meaning (“incidents of identity-based bias”) and then including a non-exhaustive list of possible violations (“verbal comments overheard,” “written” comments, and “online” speech) guarantees that students will be left guessing and will thus avoid talking about certain issues altogether, chilling protected speech. NIU needs to change its policy to define the elements of an offense under this section in such a way that the policy communicates exactly what behavior is not permissible. Second, this policy covers a great deal of protected speech. While some may find “biased” expression to be offensive or disagreeable, that alone is not a sufficient basis to restrict or punish it. The Supreme Court has held time and again that speech does not lose First Amendment protection just because the community finds it undesirable. See, e.g., Carey v. Population Servs. Int’l, 431 U.S. 678, 701 (1977) (“the fact that protected speech may be offensive to some does not justify its suppression.”); Texas v. Johnson, 491 U.S. 397, 414 (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”). If NIU wishes to prohibit true peer harassment, it must limit itself to prohibiting the harassment covered by the Davis standard, as explained earlier. IV. Policy Statement on Sexual Assault, Prohibited Sexual Contact, Stalking, Dating, and Domestic Violence (Yellow Light) Policy: 7 Abusive behavior: ... Persistent, severe, and/or pervasive threats of abuse, intimidation, coercion, bullying and/or other conduct that threatens or endangers the mental or physical health or safety of any person or causes reasonable apprehension of such harm. […] Sexual Harassment: Occurs when sexual behavior or requests for sexual favors are made either explicitly or implicitly as a term or condition of employment or educational performance, or are made as the basis of employment or academic decisions affecting the individual as an employee or a student, or have the express purpose or effect of substantially interfering with an individual’s work/academic performance or create an intimidating, hostile, or offensive working or academic environment. Analysis: This policy excessively regulates protected speech and encourages inconsistent enforcement and thus earns a yellow light rating from FIRE. First, the provision relating to “[a]busive behavior” uses undefined and overly broad terms to designate prohibited activity, creating serious concerns about vagueness. Terms such as “threat,” “intimidation,” and “coercion” carry precise legal meanings that cover speech not entitled to First Amendment protection, and so long as this policy limits its application to otherwise legally prohibited threats, intimidation, and coercion, it is legally sound. To that end, this policy should include those precise definitions to notify students of the application of those prohibitions. Additionally, the inclusion of the elements of “bullying” and “other conduct that threatens or endangers the mental or physical health or safety of any person or causes reasonable apprehension of such harm” threatens students’ speech rights. Absent a definition of “bullying,” students will be forced to guess at what conduct violates this policy. Is being “mean,” as subjectively alleged by a student or administrator, considered “bullying”? Is constitutionally protected speech that conveys messages some people find demeaning “bullying”? Likewise, the category of “other conduct” is an unconstitutional catch-all provision that is anathema to the vagueness doctrine’s requirements of clearly defined prohibitions. No student can reasonably know what speech threatens another’s “mental … health,” for instance. As this policy will leave students unable to conform their behavior to permitted speech, it is unconstitutionally vague. Second, this policy fails to meet set standards for university regulation of peer harassment. Once again, the policy defines sexual harassment to include conduct having “the express purpose or effect” of interfering with an individual’s academic performance or creating an “intimidating, hostile, or offensive” academic environment. The Third Circuit, as previously discussed, invalidated a university sexual harassment policy declaring that conduct can be sexual harassment if it has the “purpose or effect of unreasonably interfering with an individual’s work, educational performance, or status; or … such conduct has the purpose or effect of creating an intimidating, hostile, or offensive 8 environment.” See DeJohn, 537 F.3d at 319–20. This decision should counsel NIU to remove the “purpose or effect” language from its policy and instead adopt the Supreme Court’s Davis standard, in all of its elements, as its controlling standard for peer harassment V. Solicitation/Free Speech Area Policy (Yellow Light) Policy: Northern Illinois University policy prohibits solicitation or leafleting anywhere on campus with the exception of the Free Speech Area on the Martin Luther King Commons, between the Holmes Student Center and Founder's Library. ... All wishing to use the Free Speech Area must notify Student Involvement & Leadership Development […] and register with the Department of Public Safety.... Analysis: This policy excessively regulates protected speech and is therefore an unconstitutional restriction on student speech, earning a yellow light rating from FIRE. As a public institution, NIU may not bar an entire category of protected speech from campus. When the government opens the grounds of a public university to students for the exercise of their First Amendment rights, this creates a designated public forum. See Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 802 (1985) (“The government … create[s] a public forum … by intentionally opening a nontraditional forum for public discourse.”); see also Justice for All v. Faulkner, 410 F.3d 760, 769 (5th Cir. 2005) (ruling that a university’s statement to students guaranteeing them certain expressive rights on campus, when combined with the nature of a college campus, created a designated forum in open spaces on campus grounds). NIU has opened the campus grounds up to other student expressive rights, explicitly stating it “respects the rights, accorded to all persons by the Constitution, to freedom of speech, peaceable assembly, petition, and association” and that “University facilities are available for the use of speakers and as forums for the expression of opinion” in its Policy Concerning Demonstrations. This expression of government intent, combined with the aforementioned special nature of a university campus, renders the NIU campus grounds a designated public forum. NIU’s “free speech area” policy fails to satisfy the requirements for speech regulation in a designated public forum. In such a forum, the government may only impose content- neutral time, place, and manner restrictions on speech, and only when the restriction both is “narrowly tailored to serve a significant government interest” and “leave[s] open ample alternative channels for communication of the information.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). The NIU policy is not narrowly tailored to serve a significant government interest. The requirement of narrow tailoring is not met when “a substantial portion of the burden on 9 speech does not serve to advance its goals.” Ward, 491 U.S. at 799. While NIU may be pursuing legitimate interests through this ban, blanket restrictions on leafleting and solicitation in the past have regularly been struck down as being overly broad to serve whatever interest was being cited. See, e.g., Schneider v. State, 308 U.S. 147, 162 (1939) (littering); Schaumberg v. Citizens for Better Environment, 444 U.S. 620, 637–38 (1980) (fraudulent solicitation); Horina v. City of Granite City, 538 F.3d 624, 633 (7th Cir. 2008) (“intrusion, trespass, and harassment”). Any significant interests that NIU wishes to serve may still be accomplished through much narrower time, place, and, manner restrictions than a blanket ban on student expression outside of the “free speech zone.” The NIU policy also fails to leave open “ample alternative channels for communication of the information.” Providing only a tiny section of the total campus for leafleting will reduce the number of students whom this leafleting can reach and will substantially increase the amount of time needed to reach students. In striking down a local ordinance banning the placement of flyers on car windshields, the United States Court of Appeals for the Seventh Circuit—the rulings of which are legally binding on NIU—determined that the ordinance did not leave open adequate alternatives because “we cannot say that an alternative channel of communication is realistic when it requires a speaker significantly—and perhaps prohibitively—more time to reach the same audience.” See id. The NIU policy restricting leafleting to a small area of campus ensures that individuals and organizations will not be as effective in distributing their literature and will have to commit significantly greater resources to reaching their audience. Second, the notice-and-registration requirement for use of the “free speech zone” as written is unconstitutional. As the Supreme Court held in Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 165–66 (2002), “it is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must inform the government of her desire to speak to her neighbors and then obtain a permit to do so.” A broad requirement that one obtain permission before using a public forum, leaving the criteria for approval unstated and broad discretion in the hands of a government official, is constitutionally impermissible. See Kunz v. New York, 340 U.S. 290, 293 (1951). NIU could easily reform this aspect of the policy by only requiring notice in certain circumstances—for example, when groups will be using amplified sound on campus—that are precisely defined and narrowly tailored to serve a significant government interest. VI. Acceptable Use Policy (Yellow Light) Policy: Unacceptable uses include … Sending or storing for retrieval patently harassing, intimidating, or abusive material. 10 Analysis: This policy excessively regulates protected speech and thus earns a yellow light rating from FIRE. This acceptable use policy is likely void for both vagueness and overbreadth. The policy does not define what constitutes “harassing” or “intimidating” material, and, as discussed previously, these general, undefined prohibitions are constitutionally impermissible. Both peer harassment and intimidation have precise legal meanings. Again, peer harassment is governed by the Supreme Court’s decision in Davis. Intimidation, meanwhile, has been defined by the Supreme Court as “a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.” Virginia v. Black, 538 U.S. 343, 360 (2003). In order to avoid an unconstitutionally vague policy, NIU needs to incorporate the legal definitions of peer harassment and intimidation rather than leaving the terms undefined and prone to arbitrary application. The policy is likely void for overbreadth because of the prohibition on “abusive material.” Speech does not lose its First Amendment protection merely because it is “abusive.” See Gooding v. Wilson, 405 U.S. 518, 528 (1972) (ruling unconstitutional a Georgia law banning “opprobrious words or abusive language”). NIU’s ban on any and all “abusive material” covers a broad swath of protected speech, rendering the policy overbroad on its face. Conclusion Northern Illinois University currently maintains six policies that restrict students’ right to free speech. However, these policies would be easy to change to comply with constitutional standards, as explained in FIRE’s analysis. Of course, FIRE would be happy to work with the NIU administration to make these policy changes, and we stand ready to help at any time.
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