Laura Beltz, Foundation for Individual Rights in Education
What’s the most common type of speech code in FIRE’s Spotlight database? The answer might surprise you. It’s not arduous permit requirements for protests or vague procedures for inviting guest speakers — we actually flag harassment policies the most.
Speech that is a part of conduct that constitutes unlawful harassment is not constitutionally protected, but schools all too often write their harassment policies so broadly that they make protected expression punishable. One offender is California State University Channel Islands — its overbroad harassment policy is our Speech Code of the Month for July.
CSU Channel Islands provides the following policy on harassment in its Resident Handbook:
Verbal, written, telephonic, electronic, physical, and/or any other type of harassment that threatens or endangers the health or safety of any person within or related to the residential community is prohibited. Harassment includes, but is not limited to, verbal harassment (e.g., epithets, derogatory comments, or slurs) … and visual forms of harassment (e.g., derogatory posters, cartoons, drawings, symbols, or gestures). Harassment covers unwelcome conduct of a sexual nature.
At first blush, the listed examples here may not seem problematic. After all, examples like “slurs” or “derogatory posters” can certainly be a part of conduct that amounts to harassment. But, despite the implication of this policy, subjectively derogatory words and phrases don’t typically constitute harassment when standing alone.
Of further concern, the policy concludes by saying: “Harassment covers unwelcome conduct of a sexual nature.” Sure, all sexual harassment is unwelcome conduct of a sexual nature, but not all unwelcome conduct of a sexual nature is unlawful sexual harassment. (All squares are rectangles, but not all rectangles are squares.)
Under the legal standard set forth by the Supreme Court, to constitute student-on-student harassment in the educational setting, alleged harassment must be unwelcome 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.”
In other words, harassment is repeated, offensive conduct that effectively denies a student the ability to participate in university activities, like going to class or attending a club meeting, from both the victim’s perspective and the perspective of a reasonable person in the victim’s shoes. A pattern of derogatory comments, drawings, or unwelcome conduct of a sexual nature could meet this legal standard, but isolated comments probably don’t. For example, telling another student a single, subjectively off-color joke in class probably isn’t harassment, but repeating that behavior every day could effectively prevent the other student from going to class and constitute harassment. Under CSU Channel Islands’ policy, both scenarios are punishable.
Even if the university doesn’t apply the policy to punish any and all subjectively unwelcome sexual conduct or any of these isolated examples, students reading the policy are bound to assume the policy will be applied as broadly as it is written, and will self-censor their protected expression accordingly.
CSU Channel Islands must revise this policy so that it better tracks the Supreme Court’s legal standard for peer harassment. As a public institution, the university is legally required to uphold its students’ free speech rights. And as an institution that has officially adopted a version of the Chicago Statement — the commitment to free speech principles that FIRE considers to be the gold standard for such policies — it is morally obligated to do so as well.
Used with the permission of the Foundation for Individual Rights in Education.
Laura Beltz is Senior Program Officer, Policy Reform at the Foundation for Individual Rights in Education (FIRE). Laura is a Philadelphia-area native who graduated from Penn State University with a B.A. in English through the Schreyer Honors College. She is also a graduate of the University of Pennsylvania Law School, and is a member of the Pennsylvania State Bar. At Penn Law, Laura was an Associate Editor of the Journal of Constitutional Law. After spending her first summer of law school as a legal intern for FIRE, Laura worked as a legal intern at the National Constitution Center.