Freedom of speech has returned to Fayetteville State University, thanks to school officials’ decision to drop an explicitly unconstitutional speech code. This change represents a victory for liberty, for students, and for the advocates of true liberalism on college campuses, which include the Pope Center for Higher Education Policy and the Foundation for Individual Rights in Education (FIRE).
In January 2006, the Pope Center and FIRE worked together to produce “The State of the First Amendment in the University of North Carolina System”, which looked at individual UNC policies in light of their constitutionality – and found several lacking. Among them was Fayetteville State’s Code of Student Conduct’s definition of proscribed “racial harassment”:
verbal or physical behavior that stigmatizes or victimizes an individual on the basis of race and involves an express or implied threat to another person’s academic pursuits or participation in activities sponsored by the University or organizations or groups related to the University. Such behavior may also create an intimidating, hostile or demeaning environment for such academic pursuits or participation.
As the Pope Center and FIRE showed, such a policy relied on vague, imprecise language entirely too dependent upon interpretation, nor did it even require that the behavior be deemed threatening by a reasonable individual.
FSU should have known better, according to the report, because a speech code at the University of Michigan, featuring the very same wording used by FSU, had already been struck down in federal court – in 1989.
Granted, that decision — Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) — would not be legally binding on FSU, but it did indicate how the courts would likely have viewed FSU’s code had it been challenged. When FIRE named FSU’s policy its “Speech Code of the Month” in January 2007, it included several quotes from that 1989 decision:
- “The operative words in the cause section required that language must ‘stigmatize’ or ‘victimize’ an individual. However, both of these terms are general and elude precise definition. Moreover, it is clear that the fact that a statement may victimize or stigmatize an individual does not, in and of itself, strip it of protection under the accepted First Amendment tests.”
- “It is not clear what kind of conduct would constitute a ‘threat’ to an individual’s academic efforts. It might refer to an unspecified threat of future retaliation by the speaker. Or it might equally plausibly refer to the threat to a victim’s academic success because the stigmatizing and victimizing speech is so inherently distracting. Certainly the former would be unprotected speech. However, it is not clear whether the latter would.”
- “Students of common understanding were necessarily forced to guess at whether a comment about a controversial issue would later be found to be sanctionable under the Policy. The terms of the Policy were so vague that its enforcement would violate the due process clause.”
Enforcing a vague speech code is no small matter on a university campus, where the interpretation of threats can be heavily politicized. The Pope Center/FIRE report cited an example of a case at William Paterson University of New Jersey in which a Muslim student had requested on religious grounds that a women’s studies professor stop sending him unsolicited e-mails advertising a campus production of a “lesbian relationship story.” The professor interpreted the request itself as harassment.
Or consider a current case that FIRE is working on. At Hamline University in Minnesota, shortly after the Virginia Tech massacre, university administrators sent e-mail messages to the entire campus community discussing the tragedy. A student named Troy Scheffler responded by saying university officials should “reconsider [their] ban on conceal carry law abiding gun owners” in order to protect students from being defenseless before a Columbine-inspired killer, noting, as many commentators and even Virginia Tech students had then, that VT had had a gun ban in place at the time of the massacre. For that, Scheffler was suspended and told to undergo a psychological examination before returning.
And that was at a university whose policies explicitly guaranteed that students were “free to examine and discuss all questions of interest to them and to express opinions publicly or privately”!
The new code at FSU bans true harassment (which is not protected speech), defining racial harassment as “verbal or physical behavior on the basis of race that is so severe, pervasive, and objectively offensive that it bars the victim’s access to an educational opportunity or benefit or alters the conditions of the victim’s employment and creates an abusive working environment.”
Congratulations to FSU for finally doing the right thing. Students shouldn’t have to worry that they will be hauled before a disciplinary board just because someone else is offended by what they’ve said or written.
Jon Sanders is a policy analyst and research editor at the John Locke Foundation in Raleigh, N.C.