AIA On Speech Codes

Accuracy in Academia has signed onto a letter to the U. S. Department of Education urging the agency not to encourage more restrictive speech codes at colleges and universities.  “For decades now, college administrators have struggled to define discriminatory harassment,” the letter to Russlynn Ali, assistant secretary for civil rights at the agency, reads. “Define harassment too broadly, and an institution might be on the losing end of a First Amendment lawsuit, the latest in a long line of courtroom defeats dating back more than twenty years.”

“Define harassment too narrowly, and a student might sue for ignoring Title IX violations.” As we have pointed out, Title IX of the Education Amendments of 1972 has been used in everything from sports to sexual harassment suits.

“As you know,” the Foundation for Individual Rights (FIRE), which generated the letter, pointed out to Ali, “a college that fails to maintain a sufficient harassment policy may be subject to investigation by the Office for Civil Rights, and a violation might mean loss of federal funding.” Ali is Assistant Secretary for civil rights in the Office of Civil Rights.

“This confusion has led to the stubborn persistence of unconstitutional restrictions on student speech,” the letter, which nine groups including AIA and FIRE signed, states. “A 2010 survey of policies at nearly 400 universities conducted by attorneys from the Foundation for Individual Rights in Education found that two-thirds of schools maintain policies that clearly and substantially restrict protected speech.”

“Many of these restrictions are broad or vague harassment policies. For example, the University of Illinois at Urbana-Champaign defines sexual harassment to include any ‘statement that is offensive, humiliating, or an interference with required tasks or career opportunities.’ Jackson State University prohibits as harassment ‘verbally abusive language by  Any person on University-owned or controlled property.’ Marshall University’s harassment policy bans expression that causes or was intended to cause ‘mental harm, injury, fear, stigma, disgrace, degradation, or embarrassment.’”

The fact that these behavioral codes rarely hold up in court does not deter college administrators. “Unconstitutional policies like these persist despite an overwhelming string of defeats for similarly broad or vague harassment codes dating back to 1989, when a federal district court found the University of Michigan’s speech code unconstitutional,” the letter from FIRE notes.

The other groups which signed onto the letter are:

• Alliance Defense Fund Center for Academic Freedom
• American Booksellers Foundation for Free Expression
• American Council of Trustees and Alumni
• Feminists for Free Expression
• The Heartland Institute
• National Association of Scholars
• National Coalition Against Censorship
• The Tully Center for Free Speech at Syracuse University
• Woodhull Sexual Freedom Alliance

 

Malcolm A. Kline is the Executive Director of Accuracy in Academia.

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