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Northwestern University Speech Code Memo_ October 22_ 2012

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Northwestern University Speech Code Memo_ October 22_ 2012 Powered By Docstoc
					                                MEMORANDUM

To: Matthew Schauble, Northwestern University
From: Azhar Majeed, Associate Director of Legal and Public Advocacy,
Foundation for Individual Rights in Education (FIRE)
Date: October 22, 2012
Re: Speech Codes at Northwestern University

Introduction

The Foundation for Individual Rights in Education (FIRE; thefire.org) is a
nonpartisan, nonprofit organization dedicated to defending core constitutional
rights on university campuses. This memorandum is in response to your request
for information about how Northwestern University’s policies might be revised to
better protect students’ right to free speech and expression.

FIRE rates a university as a “red light,” “yellow light,” or “green light” institution
depending on the extent to which the university’s written policies restrict
constitutionally protected speech, or speech entitled to protection at a private
institution that, like Northwestern, guarantees its students freedom of speech.
Northwestern maintains a list of “student rights” including “Freedom to join
organizations, to speak freely, and to exercise the civil rights to which any citizen
of the United States is entitled, as long as the student does not claim to represent
the institution.” Under this clear, unequivocal statement, students will reasonably
expect to enjoy the same free speech rights as their counterparts at any public
institution.

However, Northwestern currently maintains one red light speech code, which we
define as a policy that both clearly and substantially prohibits free speech. The
university also has five yellow light speech codes—ambiguous policies that could
too easily be abused to punish speech entitled to protection at Northwestern.
Fortunately, all of these policies could easily be revised to protect student
discourse and meet Northwestern’s moral and legal obligations to honor the
promises it has made to its students regarding their expressive rights. Moreover,
by simply revising its lone red light policy, Northwestern would improve to an
overall yellow light rating. This would in itself be a significant step forward for
the university, and it can be achieved through just one policy change.

FIRE would be thrilled to work with the students and administrators of
Northwestern to make the school a green light institution, and to praise and
publicize this change through our extensive national media network. By simply
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revising these policies, Northwestern would be able to join a select group of colleges nationwide
that have earned FIRE’s most favorable speech code rating.

What follows is a discussion of the specific free speech issues with each of Northwestern’s
speech codes, as well as proposed solutions for remedying those defects.

I. Student Handbook: Hate Crimes and Bias Incidents (Red Light)

This policy states, in relevant part:

        [A] bias incident is defined as an act of conduct, speech, or expression to which a
        bias motive is evident as a contributing factor (regardless of whether the act is
        criminal). … Sanctions will be imposed for students found to have committed
        bias incidents or hate crimes.

This policy, Northwestern’s lone red light speech code, prohibits a wide range of speech entitled
to protection at any school that, like Northwestern, promises its students full freedom of
expression. Under First Amendment standards, therefore, it is overbroad on its face.

A statute or law regulating speech is unconstitutionally overbroad “if it sweeps within its ambit a
substantial amount of protected speech along with that which it may legitimately regulate.” Doe
v. University of Michigan, 721 F. Supp. 852, 864 (E.D. Mich. 1989), citing Broadrick v.
Oklahoma, 413 U.S. 601, 612 (1973). Here, Northwestern students face the possibility of
disciplinary action any time they engage in expression to which a “bias motive” is determined to
be a “contributing factor.” Yet most “biased” speech is protected under the First Amendment,
and should likewise be protected at an institution guaranteeing the right to robust dialogue and
debate on campus. This potentially includes political and social commentary on such timely
issues as illegal or undocumented immigration, gay marriage, and affirmative action. Students at
Northwestern should not be censored, let alone face disciplinary action, simply because another
person subjectively finds their views on these issues to include a “bias motive” as a “contributing
factor.” Indeed, it is nearly impossible to take a position on these and other sometimes-
controversial topics without being “biased” toward one view or another.

Northwestern’s maintenance of this policy stifles much important student discourse on its
campus. As the Supreme Court of the United States has counseled, “speech concerning public
affairs is more than self-expression; it is the essence of self-government,” reflecting “our
profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.” Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (internal
quotations omitted).

This red light speech code also flies in the face of Northwestern’s stated commitment to student
free expression. By revising this policy in line with its stated commitment to free speech,
Northwestern would immediately improve to an overall yellow light rating, a significant step in
itself.

Northwestern should revise this speech code by making clear that speech protected under the
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First Amendment will not be investigated or punished as a bias incident. A revised definition
might read as follows:

       Bias incidents occur when a person or group perpetrates a threat or act of
       harassment or intimidation—verbal, written or physical—which is personally
       directed against or targets another person or group because of that person’s or
       group’s race, color, religion, ancestry, age, national origin, disability, gender, or
       sexual orientation. The term “bias incident” is limited to conduct that is not
       protected by the First Amendment of the United States Constitution or by
       analogous provisions of state law. Some bias-motivated or otherwise disrespectful
       acts may be constitutionally protected speech and thus not subject to disciplinary
       action or formal investigation by the university.

II. Student Handbook: Prohibited Conduct (Yellow Light)

The policy on Prohibited Conduct bans, in relevant part:

       Physical abuse of any person or any action that threatens or endangers the
       emotional well-being, health, or safety of any person (including oneself).

By amorphously prohibiting “any action that threatens or endangers the emotional well-being” of
any person, this speech code threatens expression entitled to protection at an institution that
guarantees its students freedom of speech. Under First Amendment standards, the policy is likely
overbroad and vague on its face.

A policy or regulation is said to be unconstitutionally vague when it does not “give a person of
ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act
accordingly.” Grayned v. City of Rockford, 408 U.S. 104, 108–09 (1972). Under this policy,
Northwestern students are given no guidance regarding what the university may consider to be
speech that threatens the “emotional well-being” of another person. Moreover, the lack of an
objective, “reasonable person” standard means that the interpretation of this undefined term is
subject to the sensibilities of a complaining individual or of an administrator enforcing the
policy, no matter how hypersensitive or unreasonable they may be. Further, speech or conduct
that one person deems to threaten his or her “emotional well-being” may well be perfectly
acceptable, and even tame, to another. Finally, much speech that might affect a listener’s
“emotional well-being” is constitutionally protected. Indeed, the Supreme Court has declared
that “[A] function of free speech under our system of government is to invite dispute. It may
indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction
with conditions as they are, or even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4
(1949). Under this and other precedents, speech must not be censored or punished at a university
guaranteeing its students free speech merely because some find it to be provocative or sharp-
edged.

Due to the policy’s vagueness and lack of guidance or explanation, many students will be likely
to self-censor rather than risk punishment. As the Supreme Court has observed, “[W]here a
vague statute abut[s] upon sensitive areas of basic First Amendment freedoms, it operates to
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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, 408 U.S. at 109 (internal citations omitted). This harmful chilling effect on
campus discourse represents an abandonment of Northwestern’s institutional commitment to free
expression, as made clear in the Student Handbook policy on Student Rights.

The university should remove the term “emotional well-being” from this policy, and thereby
revise it to read:

       Physical abuse of any person or any abusive action that intentionally threatens or
       endangers the physical health or safety of any person (including oneself).

III. Student Handbook: Discrimination and Harassment (Yellow Light)

This policy reads, in relevant part:

       Harassment, whether verbal, physical, or visual, that is based on any of these
       characteristics is a form of discrimination. This includes harassing conduct
       affecting tangible job benefits, interfering unreasonably with an individual’s
       academic [sic] or work, or creating what a reasonable person would perceive is an
       intimidating, hostile, or offensive environment.

       […]

       Examples of discrimination and harassment may include:

       […]

           o   Jokes or epithets about a person’s protected status
           o   Teasing or practical jokes directed at a person based on his or her
               protected status
           o   Displaying or circulating written materials or pictures that degrade a
               person or group
           o   Verbal abuse or insults about, directed at, or made in the presence of an
               individual or group of individuals in a protected group

The policy on Discrimination and Harassment violates Northwestern students’ free speech rights
in two main respects.

First, it fails to follow the controlling standard for student-on-student (or peer) hostile
environment harassment established by the Supreme Court. As set forth by the Court in Davis v.
Monroe County Board of Education, 526 U.S. 629, 652 (1999), peer harassment in the
educational setting is conduct that is (1) unwelcome; (2) discriminatory; (3) on the basis of a
protected status such as gender or race; (4) directed at an 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
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institution’s resources and opportunities.” This standard properly balances universities’
obligations to both uphold student speech rights and prevent true harassment. As the Supreme
Court’s only decision to date regarding the substantive standard for peer harassment in
education, Davis is controlling on this matter. Any university that has committed itself to
protecting freedom of speech on campus is therefore bound to follow the Court’s guidance.

In contrast to Davis, the policy on Discrimination and Harassment defines peer harassment as
conduct “creating what a reasonable person would perceive is an intimidating, hostile, or
offensive environment.” While this contains the Davis requirement of “objectively offensive”
conduct, it does not include the other necessary elements, most crucially the “severity” and
“pervasiveness of conduct.” By defining actionable harassment in this manner, Northwestern’s
policy places expression falling short of the Davis threshold at risk of punishment.

Second, the policy provides purported examples of peer harassment that encompass much
protected speech. For example, “[j]okes” and “[t]easing” about a person’s protected status
encompass a great deal of protected humor, including satire and parody, time-honored forms of
expression under our nation’s free speech tradition. Does Northwestern really intend to punish its
students, for instance, for repeating jokes they might have heard on The Daily Show having to do
with race, religion, and similar subjects? Likewise, students should be able to banter with their
friends and “tease” one another, even about their protected status, without the possibility of being
sanctioned under this policy due to the offended reaction of a third party who overhears such
conversation. Unless such speech is part of a larger pattern of conduct actually rising to the
stringent level of the Davis standard, it should not be defined as peer harassment at any
university that promises full free speech rights to its students, as Northwestern does.

The policy also provides problematic examples of harassment, including “[d]isplaying or
circulating written materials or pictures that degrade a person or group” and “[v]erbal abuse or
insults about, directed at, or made in the presence of an individual or group of individuals in a
protected group.” The former might encompass, for instance, a flyer expressing opposition to gay
marriage on religious grounds—might an offended student claim that the flyer constitutes
harassment because it “degrades” homosexuals by taking this stance? Conversely, a flyer
expressing that opponents of gay marriage are bigots might be viewed as offensive and
degrading as well. Under the terms of this policy, the authors of both flyers could be subject to
punishment for political expression. Similarly, “verbal abuse” and “insults” are almost always
protected under the First Amendment, even when they concern a protected class. While some
may find such speech to be offensive, the Supreme Court has made clear that “the mere
dissemination of ideas—no matter how offensive to good taste—on a state university campus
may not be shut off in the name alone of ‘conventions of decency.’” Papish v. Board of Curators
of the University of Missouri, 410 U.S. 667, 670 (1973). Under the free speech promises
Northwestern has made to its students, the same holds true for expression on Northwestern’s
campus.

Northwestern should revise this policy, first and foremost, by using the Supreme Court’s Davis
standard as its controlling standard for peer harassment, in place of its current language.
Incorporating this standard will maximally protect Northwestern students’ expressive rights
while also meeting the university’s obligation to prevent actionable harassment. In addition,
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Northwestern should remove all four of the problematic examples of harassment discussed in
this section. In any purported list of examples of harassment, the university should make clear
that such examples will constitute actionable harassment only when they are part of a pattern of
conduct rising to the level required by Davis.

IV. Student Handbook: Sexual Harassment (Yellow Light)

This policy states, in pertinent part:

        Sexual advances, requests for sexual favors, and other verbal or physical conduct
        of a sexual nature constitute harassment when any of the following occurs:

        […]

            o   Such conduct has the purpose or effect of substantially interfering with an
                individual’s academic or professional performance or creating what a
                reasonable person would sense as an intimidating, hostile, or offensive
                employment, educational, or living environment.

        Some examples of sexual harassment may include:

        […]

            o   Unnecessary references to various parts of the body
            o   Remarks about a person’s gender or sexual orientation
            o   Sexual innuendoes or humor
            o   Obscene gestures
            o   Sexual graffiti, pictures, or posters
            o   Sexually explicit profanity
            o   Stalking or cyberbullying
            o   e-mail and Internet use that violates this policy

The Sexual Harassment policy violates students’ free speech rights at Northwestern in
two main respects.

First, like the policy on Discrimination and Harassment, it fails to follow the Supreme
Court’s controlling standard for peer harassment in the educational context. Instead, it
defines peer sexual harassment, in relevant part, as conduct having the “purpose or effect
of substantially interfering with an individual’s academic or professional performance or
creating what a reasonable person would sense as an intimidating, hostile, or offensive
employment, educational, or living environment.” This does not adequately protect
students’ expressive rights, as speech or conduct merely having the “purpose” of creating
an offensive educational environment is subject to punishment regardless of the actual
effect of the speech or conduct upon the complainant. This is a far cry from the stringent
requirements set forth in Davis that actionable harassment must be conduct “so severe,
pervasive, and objectively offensive, and that so undermines and detracts from the
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victims’ educational experience, that the victim-students are effectively denied equal
access to an institution’s resources and opportunities.” Davis requires a particular level of
impact upon the complainant’s educational experience, and the standard in this policy
falls well short of that requirement.

Northwestern should be aware that the United States Court of Appeals for the Third
Circuit invalidated a sexual harassment policy at Temple University in 2008 on these
very grounds. The Third Circuit held that Temple’s policy, which used the standard of
“purpose or effect,” violated Temple students’ First Amendment rights, explaining that
“the policy’s focus upon the motives of the speaker is rightly criticized” and that under
Supreme Court case law, “a school must show that speech will cause actual, material
disruption before prohibiting it.” DeJohn v. Temple University, 537 F.3d 301, 317 (3d
Cir. 2008). While Northwestern is not in the Third Circuit’s jurisdiction, that a federal
appeals court struck down a very similar sexual harassment policy at another university
provides a clear gauge with which to analyze Northwestern’s own speech code.

Second, the policy includes a wide swath of protected speech in its list of purported
examples of sexual harassment. For example, the inclusion of “[r]emarks about a person's
gender or sexual orientation” serves as a restriction on speech so broad and vague that it
could be applied against academic discussion related to gender identity or sexual
orientation, jokes about the differences between men and women, or essentially any
speech having to do with issues of gender or sexual orientation. “Sexual innuendoes or
humor” could, as discussed previously, be enforced against time-honored forms of satire
and parody. The provision on “[s]exually explicit profanity” ignores the fact that both
sexually explicit speech and profane speech are largely entitled to First Amendment
protection, and thus to protection at a university committed to free speech for its students.
Lastly, the provision relating to “e-mail and Internet use that violates this policy” makes
the various forms of protected speech listed in this policy equally punishable if they are
expressed online. This threatens free speech in forums that are increasingly important and
relevant for today’s students.

Northwestern should revise this policy, first, by using the Supreme Court’s Davis
standard as its controlling standard for peer harassment, in place of the current “purpose
or effect” standard. As previously discussed, incorporating Davis will appropriately
balance Northwestern’s interests in both upholding students’ expressive rights and
preventing true harassment. Second, Northwestern should remove the following
provisions from its list of examples of harassment: “Unnecessary references to various
parts of the body”; “Remarks about a person's gender or sexual orientation”; “Sexual
innuendoes or humor”; “Obscene gestures”; “Sexual ... pictures, or posters”; “Sexually
explicit profanity”; “cyberbullying”; and “e-mail and Internet use that violates this
policy.” Moreover, in any purported list of examples of harassment, the university should
make clear that such examples will constitute actionable harassment only when they are
part of a pattern of conduct rising to the level of the Davis standard.

V. Student Handbook: Statement of Community Principles and Values (Yellow
Light)
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This policy states, in relevant part:

        Civility and respect are expected behaviors.

This speech code problematically requires students to conform their expression to the
university’s definitions of “[c]ivility” and “respect.” Under First Amendment standards, this
policy is likely both vague and overbroad.

The policy fails to defines these operational terms at all, leaving students guessing at the speech
or expressive activity that may subject them to investigation or punishment. The vagueness of
the policy leaves campus speech rights at the mercy of the subjective sensibilities of a university
official or an offended student. After all, what is “civil” or “respectful” speech to one person may
be completely lacking in these values in the eyes of another, whose personal tastes differ. As
previously discussed, such vagueness in the regulation of campus discourse is likely to cause a
harmful and untenable chilling effect among students. This potentially robs the Northwestern
campus of the expression and exchange of many insightful and useful views.

The policy also fails to recognize that most “uncivil” and “disrespectful” speech is protected
under the First Amendment, and thus entitled to protection at any university guaranteeing its
students full freedom of expression. On this point, Northwestern would be well advised to review
the case of College Republicans v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007), in which a
federal district court in California invalidated a similarly worded civility policy maintained by
San Francisco State University. The policy required students at the university to be “civil to one
another and to others in the campus community.” In striking down this provision on First
Amendment grounds, the court wrote at length:

        As plaintiffs point out, the word “civil” is broad and elastic -- and its reach is
        unpredictably variable in the eyes of different speakers. Given the fact that this
        term is both opaque and malleable, the University’s failure even to try to define it
        intensifies the risk that students will be deterred from engaging in controversial
        but fully protected activity out of fear of being disciplined for so doing.

        [...]

        There also is an emotional dimension to the effectiveness of communication.
        Speakers, especially speakers on significant or controversial issues, often want
        their audience to understand how passionately they feel about their subject or
        message. For many speakers on religious or political subjects, for example,
        having their audience perceive and understand their passion, their intensity of
        feeling, can be the single most important aspect of an expressive act.

        [...]

        [A] regulation that mandates civility easily could be understood as permitting
        only those forms of interaction that produce as little friction as possible, forms
        that are thoroughly lubricated by restraint, moderation, respect, social convention,
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        and reason. The First Amendment difficulty with this kind of mandate should be
        obvious…

While Reed is not legally binding on Northwestern University, the federal court’s treatment and
analysis of the civility policy at issue there is wholly relevant when it comes to analyzing
Northwestern’s own speech code.

Northwestern should remove this provision entirely to safeguard students’ free speech rights. At
the same time, if Northwestern wishes to encourage (but not require) such values as civility and
respect, it may do so while staying consistent with its promises of free speech. Northwestern
would simply need to make clear that a statement encouraging civility or respect is purely
aspirational, and that students will not face investigation or disciplinary action for not abiding by
its terms. A good example of such aspirational language can be found in Pennsylvania State
University’s “Penn State Principles.” The preamble to the Penn State Principles states:

        The Penn State Principles were developed to embody the values that we hope our
        students, faculty, staff, administration, and alumni possess. At the same time, the
        University is strongly committed to freedom of expression. Consequently, these
        Principles do not constitute University policy and are not intended to interfere in any way
        with an individual’s academic or personal freedoms. We hope, however, that individuals
        will voluntarily endorse these common principles, thereby contributing to the traditions
        and scholarly heritage left by those who preceded them, and will thus leave Penn State a
        better place for those who follow.

VI. Student Handbook: Civility, Mutual Respect, and Unacceptability of Violence on
Campus (Yellow Light)

This policy states, in pertinent part:

        Expected behavior. Each community member is expected to treat other community
        members with civility and respect, recognizing that disagreement and informed debate
        are valued in an academic community.

        […] Unacceptable behavior. Demeaning, intimidating, threatening, or violent behaviors
        that affect the ability to learn, work, or live in the University environment depart from the
        standard for civility and respect. These behaviors have no place in the academic
        community.

Just like the Statement of Community Principles and Values, this policy mandates that students
conform their speech to the university’s standards of “civility” and “respect.” For the same
reasons discussed with respect to that policy, this requirement is a violation of the free speech
rights that Northwestern has guaranteed to its students.

Additionally, this speech code states that “[d]emeaning … behaviors that affect the ability to
learn, work, or live in the University environment depart from the standard for civility and
respect.” Yet, most “demeaning” expression is protected under the First Amendment, and under
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analogous standards should be protected at Northwestern. The fact that such expression may
offend or upset another person does not by itself remove it from protection. As previously cited,
the Supreme Court has stated that “[A] function of free speech under our system of government
is to invite dispute. It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.”
Terminiello v. Chicago, 337 U.S. 1, 4 (1949). Thus, under Northwestern’s free speech promises,
a ban on “demeaning” speech does not pass muster.

Northwestern should remove this policy’s requirements of “civility” and “respect,” as well as its
ban on “demeaning” speech. Once again, if the university wishes to encourage such values
among its student body, it is free to do so, consistent with its stated commitments. It must simply
make clear that such a statement is purely aspirational and will not be used to investigate or
punish a student for engaging in protected expression, as discussed in the previous section.

Conclusion

FIRE hopes this memorandum is helpful in your efforts to promote speech code reform at
Northwestern University. Once again, each of these policies could easily be revised to better
protect student speech. FIRE would be very pleased to work with the students and administrators
of Northwestern to help the university meet its stated commitment to freedom of speech on
campus.

				
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