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FIRE Letter to UW Regents_ April 24_ 2013

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FIRE Letter to UW Regents_ April 24_ 2013 Powered By Docstoc
					April 24, 2013

Brent Smith
President, University of Wisconsin System Board of Regents
P.O. Box 1626
205 5th Avenue S., Suite 600
La Crosse, Wisconsin 54602-1626

Sent via U.S. Mail and Electronic Mail (brent@johnsflaherty.com)

Dear President Smith:

The Foundation for Individual Rights in Education (FIRE) unites leaders in
the fields of civil rights and civil liberties, scholars, journalists, and public
intellectuals across the political and ideological spectrum on behalf of liberty,
legal equality, academic freedom, due process, freedom of speech, and
freedom of conscience on America’s college campuses. Our website,
thefire.org, will give you a greater sense of our identity and activities.

We write today to express our concern over the threat to freedom of
expression posed by Board of Regents’ Policy 14-6, the “Racist and Other
Discriminatory Conduct Policy.” Although no longer binding on the
individual UW campuses, Policy 14-6 strongly suggests to member
institutions that they adopt language that has explicitly been declared
unconstitutional by a federal court—and indeed, many institutions have
followed suit. We urge you to remove that language from the policy and to
notify your constituent campuses of the change.

In 1989, the Board adopted a rule, Wis. Admin. Code § UWS 17.06(2),
prohibiting racist and discriminatory conduct—as defined by Policy 14-6—on
all UW campuses.

In The UWM Post, Inc. v. Board of Regents of the University of Wisconsin
System, 774 F. Supp. 1163 (E.D. Wis. 1991), the U.S. District Court for the
Eastern District of Wisconsin considered the constitutionality of § UWS
17.06(2). That policy provided, in relevant part:

       UWS 17.06 Offenses defined. The university may discipline a student
       in non-academic matters in the following situations.

       […]
	
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       (2)(a) For racist or discriminatory comments, epithets or other expressive
       behavior directed at an individual or on separate occasions at different
       individuals, or for physical conduct, if such comments, epithets or other
       expressive behavior or physical conduct intentionally:

       1. Demean the race, sex, religion, color, creed, disability, sexual orientation,
       national origin, ancestry or age of the individual or individuals; and

       2. Create an intimidating, hostile or demeaning environment for education,
       university-related work, or other university-authorized activity.

       (b) Whether the intent required under par. (a) is present shall be determined by
       consideration of all relevant circumstances.

       (c) In order to illustrate the types of conduct which this subsection is designed to
       cover, the following examples are set forth. These examples are not meant to
       illustrate the only situations or types of conduct intended to be covered.

       1. A student would be in violation if:

       a. He or she intentionally made demeaning remarks to an individual based on that
       person’s ethnicity, such as name calling, racial slurs, or “jokes”; and

       b. His or her purpose in uttering the remarks was to make the educational
       environment hostile for the person to whom the demeaning remark was addressed.

The court held that this provision was unconstitutionally overbroad because it
encompassed speech protected by the First Amendment:

       The problems of bigotry and discrimination sought to be addressed here are real
       and truly corrosive of the educational environment. But freedom of speech is
       almost absolute in our land and the only restriction the fighting words doctrine
       can abide is that based on the fear of violent reaction. Content-based
       prohibitions such as that in the UW Rule, however well intended, simply
       cannot survive the screening which our Constitution demands.

UWM Post, 774 F. Supp. at 1181 (emphasis added).

Indeed, the current Policy 14-6 explicitly references the UWM Post decision, noting that
the Board repealed § UWS 17.06(2) in 1993 after the district court’s decision and
decisions from the Supreme Courts of both the United States and Wisconsin “cast doubt
on [its] constitutional validity.” Yet inexplicably, the Board still recommends the
discredited language to its constituent institutions in Policy 14-6.

Specifically, Policy 14-6 directs all UW institutions to adopt discriminatory harassment
policies and provides in section 2(a) that:
	
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        Definitions consistent with the following statement may be appropriate:

        “Racist and other discriminatory conduct” means intentional conduct, either
        verbal or physical, that explicitly demeans the race, sex, religion, color, creed,
        disability, sexual orientation, national origin, ancestry, or age of an individual or
        individuals, and (1) has the purpose or effect of interfering with the education,
        university-related work, or other university authorized activity of a university
        student, employee, official or guest; or (2) creates an intimidating, hostile or
        demeaning environment for education, university related work, or other university
        authorized activity.

Section 2(b)(iii) of the policy goes on to suggest that institutions might wish to include
illustrative examples of prohibited conduct such as “verbal assaults based on ethnicity,
such as name calling, racial slurs, or ‘jokes’ that demean a victim’s color, culture or
history.”

The language of the current Policy 14-6 is substantively identical to the language struck
down in UWM Post. Both prohibit conduct that intentionally demeans an individual’s
race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry, or
age, and that creates and intimidating, hostile, or demeaning environment for that
individual. Moreover, both state that examples of such conduct include name calling,
racial slurs, or jokes.

In response to Policy 14-6’s suggested language, a number of the UW campuses have
adopted discriminatory harassment policies that either include language from Policy 14-6
or incorporate its definition by reference.

UW-Oshkosh’s “Racist and Discriminatory Conduct” policy was explicitly “written to
implement the October 1988 UW System Policy Statement and Guidelines on ‘Racist and
Other Discriminatory Conduct.’” It uses the same definition as Policy 14-6, providing:

        “Racist and other discriminatory conduct” means intentional conduct, either
        verbal or physical, that explicitly demeans the race, sex, religion, color, creed,
        disability, sexual orientation, national origin, ancestry, or age of an individual or
        individuals, and that either: (1) has the purpose or effect of interfering with
        education, University-related work, or other University-authorized activity of a
        University student, employee, official or guest; or (2) creates an intimidating,
        hostile or demeaning environment for education, University-related work, or other
        University-authorized activity.

The UW-Oshkosh policy also adopts the suggested examples from Policy 14-6, explicitly
prohibiting:

        Verbal assaults based on ethnicity, such as name calling, racial slurs, or ‘jokes’
        that demean a victim's color, culture or history.
	
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The discriminatory harassment policies at UW-Superior and UW-River Falls also are a
verbatim repetition of the language from Policy 14-6.

Other campuses, rather than providing students with a definition of harassment, simply
incorporate Policy 14-6 by reference. At UW-Stout, for example, the “Student Non-
Discrimination Policy” provides that:

       Harassment based on sex, race, religion, color, creed, disability, sexual
       orientation, gender identity or expression, national origin, ancestry, age or any
       other prohibited basis defined by federal or state law or University of Wisconsin
       System policy is a form of discrimination and is prohibited. [Emphasis added.]

The same goes for UW-Platteville, where the “Discrimination and Harassment Policy”
states:

       Harassment based on sex, race, religion, color, creed, disability, sexual
       orientation, gender identity or expression, national origin, ancestry, age or any
       other prohibited basis defined by federal or state law or University of Wisconsin
       System policy is a form of discrimination. [Emphasis added.]

At UW-La Crosse, the Student Life Office maintains an informational page on
discrimination that excerpts from Policy 14-6, stating that:

       It is the policy of the Board of Regents of the University of Wisconsin System
       that racist and discriminatory conduct will not be tolerated within the University
       of Wisconsin System. Racist and discriminatory conduct encompasses
       harassment based upon the race, sex, gender identity or expression, religion,
       color, creed, disability, sexual orientation, national origin, ancestry or age of an
       individual or individuals. Discrimination, discriminatory attitudes, and
       expressions that reflect discrimination are inconsistent with the efforts of the
       University of Wisconsin System to foster an environment of respect for the
       dignity and worth of all members of the University community and to eliminate
       all manifestations of discrimination within the University (adopted October 1988).

Still other campuses, while not explicitly adopting Policy 14-6, maintain speech-
restrictive policies that to some degree echo the language of the policy. UW-Green Bay’s
“Harassment and Discrimination Policy,” for example, prohibits “hostile behavior such as
insulting, teasing, mocking, degrading, or ridiculing another person or group.” And the
“Community Bill of Rights and Responsibilities” at UW-Stevens Point prohibits
“behaviors which compromise or demean the dignity of individuals or groups, including
hazing, intimidating, taunting, baiting, ridiculing, insulting, harassing, and
discrimination.”

While each UW campus administration is of course individually responsible for ensuring
that its policies are consistent with the First Amendment, it is clear that a substantial
number of the unconstitutional discriminatory harassment policies in force on UW
campuses are directly attributable to Regents’ Policy 14-6. Given that courts that have
	
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considered the constitutionality of campus speech codes have almost uniformly struck
those codes down, any institution maintaining such speech codes is highly vulnerable to
suit. 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).

Further, any punishment of UW students on the basis of their protected speech would
leave university administrators at risk of being held personally liable for damages.
Qualified immunity normally shields public officials such as administrators at public
universities from personal liability for the exercise of their discretionary duties. However,
under 42 U.S.C. § 1983, a federal civil rights statute, individuals who have been deprived
of a federal statutory or constitutional right may pursue monetary damages against the
responsible official acting under color of state law. Under Section 1983, public officials
are entitled to qualified immunity only if their actions do not violate “clearly established”
law of which a reasonable person in the official’s position would be aware. See Harlow v.
Fitzgerald, 457 U.S. 800 (1982). The institutions employing Policy 14-6’s definition of
discriminatory conduct, which was explicitly declared unconstitutional when imposed
systemwide through the Wisconsin Administrative Code, certainly risk being found in
violation of clearly established law.

While FIRE will also reach out to the individual UW campuses maintaining the
unconstitutional policies, it might be difficult to persuade them to change language that
they believe has been recommended to them by their Board of Regents. Therefore, we
urge the Board of Regents to revise sections 2(a) and 2(b)(iii) of Policy 14-6 to eliminate
the restrictions on protected speech contained therein, and to inform its member
institutions of the change.

Revising 2(a) is quite simple. The U.S. Supreme Court has set forth a very clear
definition of discriminatory harassment in the educational setting, a definition carefully
tailored to accommodate universities’ twin obligations to protect free speech and prevent
harassment. In Davis v. Monroe County Board of Education, 526 U.S. 629, 652 (1999),
the Supreme Court defined peer-on-peer harassment in the educational context as 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.
	
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If the Board of Regents replaced the current language in section 2(a) with language that
tracked the Supreme Court’s Davis standard, the policy would still prohibit
discriminatory harassment without impermissibly infringing on students’ free speech
rights.

With regard to section 2(b)(iii), which suggests that UW campuses prohibit “name
calling, racial slurs, or ‘jokes’ that demean a victim’s color, culture or history,” the Board
of Regents might simply eliminate that example. In the alternative, the Board might add a
qualifier noting that such speech may only be prohibited when it is part of a pattern of
conduct that rises to the level of severity, pervasiveness, and objective offensiveness
necessary to constitute harassment.

We hope that you will give these recommendations serious consideration, and we are
always available to answer any further questions you might have. We request a response
on this matter by May 29, 2013.

Sincerely,


Samantha Harris
Director, Speech Code Research

cc:
Kevin Reilly, President, University of Wisconsin System
Michael J. Falbo, Vice President, University of Wisconsin System Board of Regents
Jeffrey Bartell, University of Wisconsin System Board of Regents
John R. Behling, University of Wisconsin System Board of Regents
Mark J. Bradley, University of Wisconsin System Board of Regents
John Drew, University of Wisconsin System Board of Regents
Tony Evers, University of Wisconsin System Board of Regents
Tim Higgins, University of Wisconsin System Board of Regents
Tracy Hribar, University of Wisconsin System Board of Regents
Edmund Manydeeds, University of Wisconsin System Board of Regents
Regina Millner, University of Wisconsin System Board of Regents
Katherine Pointer, University of Wisconsin System Board of Regents
Charles Pruitt, University of Wisconsin System Board of Regents
Gary Roberts, University of Wisconsin System Board of Regents
Mark Tyler, University of Wisconsin System Board of Regents
José F. Vásquez, University of Wisconsin System Board of Regents
David G. Walsh, University of Wisconsin System Board of Regents
Gerald Whitburn, University of Wisconsin System Board of Regents

				
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