uw regents letter shiell et al

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					April 23, 2013

Brent Smith, President
Office of the Board of Regents
1860 Van Hise Hall
1220 Linden Drive
Madison, WI 53706

Cc: Members of the University of Wisconsin Board of Regents
Cc: Kevin Reilly, President, University of Wisconsin

Dear President Smith,

We write today in unity with the Foundation for Individual Rights in Education (FIRE)
and others to express our concern that student free speech rights are threatened by a
policy of the Board of Regents and corresponding policies of numerous institutions in the
UW System.

In UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, (774 F.
Supp. 1163 (E.D. Wis. 1991), a federal district court struck down the unconstitutionally
overbroad restrictions on student speech contained in § UWS 17.06(2). Across the
country, similar overbroad campus speech restrictions have routinely been struck down.
See McCauley v. University of the Virgin Islands, 618 F.3d 232 (3d Cir. 2010); DeJohn v.
Temple University, 537 F.3d 301 (3d Cir. 2008); Dambrot v. Central Michigan
University, 55 F.3d 1177 (6th Cir. 1995); University of Cincinnati Chapter of Young
Americans for Liberty v. Williams, 2012 U.S. Dist. LEXIS 80967 (S.D. Ohio Jun. 12,
2012); Smith v. Tarrant County College District, 694 F. Supp. 2d 610 (N.D. Tex.
2010); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d
1005 (N.D. Cal. 2007); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004); Bair
v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003); Booher v. Board of
Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998); Corry v. Leland
Stanford Junior University, No. 740309 (Cal. Super. Ct. Feb. 27, 1995) (slip op.); Doe v.
University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989).

However, current BOR Policy 14-6 “Racist and Other Discriminatory Conduct Policy”
2(a) contains the same unconstitutionally overbroad language as 17.06(2) regarding
discriminatory expressions that create an intimidating, hostile, or demeaning
environment; and 2(b)(iii) states without qualification that examples of such expression
include name calling, racial slurs, or jokes. More importantly, 2(a) and 2(b)(iii) also
violate the standard of peer-on-peer harassment in educational settings defined by the
U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629, 652
(1999), namely, conduct that is:

       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 is a significant matter since the unconstitutionally overbroad language of Policy 14-
6 2(a) and 2(b)(iii) or similar language has been adopted by UW-Oshkosh, UW-Stout,
UW-Platteville, UW-La Crosse, UW Green Bay, UW-Stevens Point, UW-Superior, and
UW-River Falls. Examples of such institutional policies are provided in the FIRE letter.

This also is a significant matter because university officials who punish students for
exercising protected speech are at risk of becoming personally liable for damages by
losing qualified immunity as defined in 42 U.S.C. § 1983. Public officials lose qualified
immunity when they violate clearly established law a reasonable person in the official’s
position would be aware of. See Harlow v. Fitzgerald, 457 U.S. 800 (1982). Officials
who use Policy 14-6’s unconstitutionally overbroad definition of discriminatory conduct
violate the clearly established law of UWM Post, Davis and other court decisions listed
above striking down overbroad university speech regulations.

Thus, with FIRE and others, we urge the Board of Regents to revise Policy 14-6. Rewrite
section 2(a) using the Supreme Court’s Davis standard and eliminate section 2(b)(iii) or
add language stating such conduct may be prohibited only when it meets the Davis
standard. The resulting policy would prohibit illegal discriminatory harassment without
violating student First Amendment rights.

We believe racism and other discriminatory conduct constitute a serious concern the UW
System and its member institutions are legally and ethically obligated to address, but we
also believe we must not address these in ways that violate the First Amendment.


Dr. Timothy C. Shiell, UW-Stout
Dr. Jim Miller, UW-Stout
Dr. Kent Syverson, UW-Eau Claire
Dr. Jerry Kapus, UW-Stout
Dr. Michael Levy, UW-Stout
Dr. Elizabeth Buchanan, UW-Stout

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