The Intersection of Free Speech and Harassment Rules

Vol. 38 No. 4

By

Brett A. Sokolow is the managing partner of the National Center for Higher Education Risk Management, one of the largest higher education law practices in the country. Sokolow also serves as executive director of the National Behavioral Intervention Team Association and the Association of Title IX Administrators. For more information, visit thenchermgroup.org.

Daniel Kast is the assistant dean of students at the University of Wisconsin–Milwaukee. He has over ten years’ experience in student conduct investigation and adjudication and has been the primary author of multiple student conduct codes. He has also served as contributing editor to the Journal of Campus Safety & Student Development since 2005.

Timothy J. Dunn is the director of Greek Affairs at Union College. He serves as a hearing officer for the college and teaches law in the department of philosophy. Dunn is also a member of the Association for Student Conduct Administration.

The very nature of education necessitates that a high priority be given to the rights of individuals to freely express themselves. An unequivocal opportunity to challenge the status quo is not only valuable, but indispensable for an effective educational environment, particularly as students move into the realms of secondary and higher education. Paradoxically, institutions are continually under fire for alleged failures to safeguard the free speech rights of their students and faculty members.

The question posed here is simple: Why do schools and colleges continue to make themselves such easy targets for criticism? To answer this question, this article clarifies the distinction between free speech and harassing speech so that administrators can formulate appropriate policies and implement lawful practices. School administrators who fail to heed this distinction are routinely painted as thought police, heavy-handedly imposing their own politically correct views onto timid and hapless students. Violations of free speech rights seem to occur at schools and on college campuses regularly, but the media doesn’t report all the instances in which administrators honor and defend the First Amendment, as there are no lawsuits to write about when they do. Coverage of the violations makes good grist for the media mill, and watchdog groups have spent years crafting the perception that freedom of speech is under general and widespread attack.

In contrast, those entrusted with maintaining a civil and educationally effective environment often feel they have no choice but to respond quickly and decisively in light of seemingly offensive conduct. Failure to do so may result in criticism from parents and other stakeholders eager to protect underrepresented populations within the school community. Rather than give in to the rock on the one side and the hard place on the other, some discussion of the critical factors involved in this delicate balancing act may help administrators avoid a showdown at their own institution—or at least turn the argument to a more constructive place in the event a specific incident catches the attention of free speech advocates, the “PC crowd,” and/or the media.

As a point of legal departure, school regulations and actions that impact speech must be content and viewpoint neutral and must be narrowly tailored to fit the circumstances. These regulations must be clear enough for a person of ordinary intelligence to understand, or courts will find them unconstitutionally void for vagueness. They cannot overreach by covering both protected and unprotected speech or courts will find them unconstitutionally overbroad. The regulation cannot act to preemptively prevent students from exercising their right to freely express themselves because the courts will find the prior restraint of speech presumptively unconstitutional. Some basic guidelines for public schools, public colleges, and many private colleges in California may be useful to consider:

  • If it is against school or campus rules to demean or disgrace someone, the policy is overbroad.
  • If it is against the rules to be inflammatory, contemptuous, or argumentative, the policy is vague and overbroad.
  • If it is against the rules to harass someone generally, and not on the basis of a protected class such as race or gender, the policy risks being vague and overbroad.
  • If it is against the rules to insult someone, even if the insult is as vile as “f*$%ing n%$*%r,” it will be difficult to argue fighting words unless the insult does in fact lead imminently to a fight, in which case the school or college might be better off addressing the behavior as an assault or battery.
  • If the rules prohibit merely offensive speech or conduct, even on the basis of protected class status, as creating a hostile environment, the policy should refocus on whether the offense was severe enough to cause a discriminatory effect. If not, it was merely offensive, and offensive speech is protected speech.

Critics of administrative overreach make much of what they term “speech codes.” Speech codes are policies (including posting policies, protest policies, designated free speech “zones,” harassment policies, and so forth) that facially prohibit or curtail protected speech or activities. Policies, for example, that prohibit derogatory comments are the prime example. Students are meant to be civil, inclusive, and tolerant, but the First Amendment does not readily permit punishment when they are not. It is also important to note that while most school policies cannot accurately be termed speech codes on their faces, they can nevertheless be applied in a way that encroaches via over breadth or vagueness on the constitutional rights of students.

Some training can help to enhance sensitivity to where the boundaries lay. Generally, administrators believe they are correctly applying policy in many of the situations that lead to complaints of infringement. They believe calling a woman “fat,” or a homosexual a “f*#%*t,” or an African American a “n%*#*r” is a violation of their campus harassment policies. On a private college campus or at a private school, that could be true. But it will not be true at public schools and colleges. Harassment rules are always subject to First Amendment scrutiny because public school and college employees are state actors.

In some ways, activist courts, agencies, and educational messages about civility and tolerance may have given a false impression that any sexist, ageist, racist, and so forth, remark is tantamount to harassment. As a society, we now use the term “harassment” to mean being bothered, generically. We must distinguish generic harassment from discriminatory harassment. The standard laid out in Davis v. Monroe County Board of Education makes this clear: To be considered discriminatory harassment, the conduct in question must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”

All too often, a school’s reaction focuses too heavily on the content of speech. However, content is, to risk oversimplification, somewhat irrelevant. It is the context that matters, and the context helps to make the determination about whether conduct is actionable under school policy or protected by the First Amendment. Severity, pervasiveness, and objective offense are all factors that must be evaluated outside the immediate emotional distress on the part of those subjected to a specific instance of questionable speech.

To assess whether there is a violation of a harassment policy, three critical elements must all be present:

  • Targeting of a protected class (gender, race, religion, etc.);
  • Unwelcomeness of harassing behavior or verbal, written, and/or online conduct; and
  • Deprivation of educational access, opportunities, rights, and/or peaceful enjoyment therefrom.

Public school and college policies must focus more effectively on the third element. It is ignored too often. One instance of a comment, no matter how egregious or offensive, is protected speech. The authors do not believe there exists a viable “fighting words” exception to the First Amendment today, mainly because of the reclamation of epithets and slang by various groups and because of the general coarsening of discourse within our society since the fighting words doctrine was first acknowledged by the courts in the Chaplinsky case more than half a century ago. If nothing else, the fighting words doctrine has merged with the threat doctrine today, and threats of immediate violence are not protected speech.

To summarize, merely offensive harassing speech is protected speech. Speech that rises to the level of discriminatory harassment is not protected speech. Examples of such speech are rare and unusual. Most school and campus speech is going to be merely offensive unless it is repetitive or widespread, which does, we should acknowledge, become more likely when disseminated online.

Perhaps the problem is in terminology, to some extent. School policies prohibit harassment when they ought more accurately to be explicitly prohibiting discriminatory harassment. In harassment cases, the stringent legal requirement is that merely offensive conduct is not enough to establish a policy violation at a public school or on a public college campus. We must learn to look for the discriminatory impact. More precisely, if someone calls you a “fag,” that person is harassing you. But that person’s right to call you a “fag” is protected by the First Amendment and outweighs your right to be free from being called a “fag” unless and until that action is so persistent or pervasive that it causes you—and would cause a reasonable person—to experience an educational deprivation.

Individuals have a First Amendment right to harass anyone they want, in the lay sense of the word “harassment” as irritating or tormenting someone, though the rights of school and college employees to do so in their professional capacities are narrower than the free speech rights of students. Yet, when a person is called a “fag” or any other derogatory term or epithet, or demeaned based on an immutable characteristic so often and so publicly that it impacts his or her peaceful enjoyment of the school or campus, then the right to peaceful enjoyment is the highest priority, and there is no First Amendment right to engage in discriminatory harassment.

A pair of recent case studies, below, illustrate the intersection of free speech and harassment in the educational environment. Reviewing and discussing them can help us to apply the principles addressed above.

In the first, hailed as a victory for free speech by the Foundation for Individual Rights in Education (FIRE), Oakland University near Detroit suspended a student for three semesters, barred him from campus, and demanded he undergo “sensitivity” counseling because he wrote in a class assignment that he found his instructors attractive. While the course specifically permitted students to write creatively about any topic, the university chose to classify his writing as “unlawful individual activities.”

The issue arose when the student submitted his writing journal to the professor in early November 2011. The course materials instructed the students to use the journal as “a place for a writer to try out ideas and record impressions and observations” and stated that it should contain “freewriting/brainstorming” and “creative entries.”

In an entry titled “Hot for Teacher,” the student discusses his concerns about being distracted in class by attractive professors. In a separate entry, the student states that his professor is like Ginger from the television series Gilligan’s Island, while another professor is like the character Mary Ann.

In an e-mail on November 29, his professor announced to some of her colleagues, “Either [the student] leaves campus or I do.” On December 7, the dean of students and assistant vice president of student affairs and the vice president for student affairs and enrollment management met with the student and pressured him to withdraw from his winter semester classes. Shortly after, the student was suspended.

On these described facts, this is a perfect example of administrative overreaching and infringing on free speech, though it should be noted that Oakland has asserted it was also concerned about references to guns and possible implied threats contained in the writings. The student writing did not rise to the level of harassment because it was not persistent/pervasive nor did it deprive the professor of her right of education or employment access, benefits, or opportunities. The journal entries contained no “direct threat” and it is clearly, then, constitutionally protected speech. While the professor was so offended that she threatened to resign, her ultimatum does not grant the university license to violate the student’s constitutional rights. By classifying his writing as “unlawful individual activities,” the university could try to argue that its action was content neutral. That would fail because the student was required to undergo sensitivity training, which, in itself, is used to change the way a person expresses himself to others. To date, this matter remains unresolved.

The second of our case studies involves two concurrent court decisions from last year: Layshock v. Hermitage School District and J.S. v. Blue Mountain School District. Both cases involved student ridicule of school officials through the use of online social media.

Justin Layshock was disciplined by Hickory High School after he created a fictitious MySpace profile for the school principal, Eric Trosch, using a private computer. Layshock copied a photo of Trosch from the district website, but otherwise used no school resources in formulating his “parody.” As part of the profile creation process, Layshock completed various survey questions meant to help MySpace users define themselves. Layshock’s answers included repeated use of the word “big” (which the court noted was an apparent reference to Trosch as a “large man”), references to drug and alcohol use, and homophobic remarks. Some examples:

Birthday: too drunk to remember

In the past month have you smoked: big blunt

Ever been beaten up: big fag

Layshock subsequently popularized this fake profile among his friends, which led to several more “parodies” being created, which Trosch characterized as “degrading,” “demeaning,” “demoralizing,” and “shocking.” The court noted that while Trosch reported the matter to police, no criminal charges were filed. Nevertheless, Layshock was suspended from school for ten days, restricted from extracurricular activities, and prohibited from participating in his graduation ceremony.

J.S. was likewise disciplined for creating a fake MySpace profile of her school principal, James McGonigle. Again, the profile was created using a private computer, off of school property, and without the use of educational resources. In this case, the principal was not identified by name, although McGonigle’s photo was used on the fake profile. Instead, the name given was “M-Hoe,” and the following listed in the “About me” section:

HELLO CHILDREN[.] yes. it’s your oh so wonderful, hairy, expressionless, sex addict, fagass, put on this world with a small dick PRINCIPAL[.] I have come to myspace so i can pervert the minds of other principal’s [sic] to be just like me. I know, I know, you’re all thrilled[.] Another reason I came to myspace is because - I am keeping an eye on you students (who[m] I care for so much)[.] For those who want to be my friend, and aren’t in my school[,] I love children, sex (any kind), dogs, long walks on the beach, tv, being a dick head, and last but not least my darling wife who looks like a man (who satisfies my needs) MY FRAINTRAIN . . .

This fake profile was initially made public; however, J.S. changed it to “private” after several other students made reference to it at school. After this change, access to the profile was limited to approximately two dozen students. As in the Layshock case, when J.S. was discovered to be the creator of the profile, the school issued a ten-day suspension. Again, the police were contacted, but no criminal charges were ever filed.

The two cases were heard en banc by the Third Circuit in Pennsylvania and decisions handed down on June 13, 2011. In both, the court found for the students, indicating their belief that the schools overreached in disciplining them for behavior that took place outside the classroom.

In writing for the Layshock majority, Chief Judge Theodore McGee stated, “it would be an unseemly and dangerous precedent to allow the state, in the guise of school authorities, to reach into a child’s home and control his/her actions there to the same extent that it can control that child when he/she participates in school-sponsored activities. Allowing the [school] district to punish Justin for conduct he engaged in while at his grandmother’s house using his grandmother’s computer would create just such a precedent. . . .”

Judge Michael Chagares wrote for the majority in the J.S. case. In it, he dismissed comparison to the 1986 Bethel School District v. Fraser decision, which upheld the right to limit freedom of speech while at school: “[T]o apply the Fraser standard to justify the school district’s punishment of J.S.’s speech would be to adopt a rule that allows school officials to punish any speech by a student that takes place anywhere, at any time, as long as it is about the school or a school official, is brought to the attention of a school official and is deemed ‘offensive’ by the prevailing authority. . . . Accordingly, we conclude that the Fraser decision did not give the school district the authority to punish J.S. for her off-campus speech.”

Neither of these cases involved allegations of harassment; therefore, in making its decisions, the court relied not on the Davis standard, but on that established by Tinker v. Des Moines Independent Community School District, in which the Supreme Court stated schools may only restrict speech that “materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.”

The Layshock decision states, “[W]hen pressed at oral argument, counsel for the School District conceded that the District was relying solely on the fact that Justin created the profile of Trosch, and not arguing that it created any substantial disruption in the school.” Likewise, the J.S. decision contends that “beyond general rumblings, a few minutes of talking in class, and some officials rearranging their schedules to assist McGonigle in dealing with the profile, no disruptions occurred.” The Tinker standard is comparable to the Davis standard, which places the threshold for harassment at the point where conduct “bars the victim’s access to an educational opportunity,” in that speech can be restricted only when the educational process is substantially impeded. In other words, when reviewing school policies, and the implementation thereof, it is critical to ensure students are being disciplined as a result of the objective impact of their speech, and not solely based on its content and/or the feelings of those to whom that speech is targeted.

Despite concerns about the tactics employed by critics such as FIRE, the authors agree with most of FIRE’s contentions about free speech. In particular, FIRE’s guide to free speech is a worthwhile read. Many schools have problematically expanded the concept of harassment to encompass general campus or school civility. In such cases, the moral value of civility and tolerance has been raised above the moral value of free speech. The policies and practices of a public institution or district need to honor discourse, and use free and open debate—not disciplinary proceedings—as the remedy for unpopular speech. The moral value of free speech is at least as important as the moral values of civility and tolerance.

Schools are in the business of education, and when members of those communities engage in repulsive speech, the moment must be used to educate, not to punish. By honoring free speech, we honor the moral values of civility and tolerance. By repressing or chilling speech, we dishonor those values.

Source List

Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986).

Broadrick v. Oklahoma, 413 U.S. 601 (1973).

Cal. Educ. Code § 94367 (West 2009).

Chaplinsky v. New Hampshire, 315U.S. 568 (1942).

Davis v. Monroe Cnty. Bd. of Educ.,526 U.S. 629 (1999).

Found. for Individual Rights in Educ., http://thefire.org.

J.S. et al. v. Blue Mountain Sch. Dist., 593 F.3d 286 (2010).

Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).

Layshock ex rel. Layshock v.
Hermitage Sch. Dist., 593 F.3d 249 (2010).

Near v. Minnesota, 283 U.S. 697 (1931).

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

 

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