The Foundation for Individual Rights in Education (FIRE) has released a statement criticizing the University of North Dakota’s speech code.
At issue is UND’s policy against harassment:
U]nacceptable behavior, which can range from violence and bullying to more subtle behavior such as ignoring an individual at work or study. It subjects an individual or a group to unwelcome attention, intimidation, humiliation, ridicule, offense or loss of privacy. It is unwanted by the recipient and continues after an objection is made. …
his definition includes sexual and racial harassment, and bullying as well as any other form of personal harassment arising from disability, sexual orientation, gender identity, socioeconomic status, age, religion etc. It can be a single explicit incident causing distress or repeated unacceptable behavior affecting the dignity of an individual that appears or feels offensive, demeaning, intimidating or hostile….
FIRE believes these policies to be so vague as to not pass constitutional muster:
The easiest way to see how this policy violates the First Amendment is to compare it to the actual definition of peer harassment in the educational setting established by the U.S. Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999). In Davis, the Court defined actionable harassment 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.”
Far from requiring that harassment be “severe” conduct, UND’s policy defines it broadly to include any conduct that subjects an individual or group to “offense” or “ridicule.” This directly contradicts not only the Supreme Court’s holding in Davis, but also decades of court decisions affirming that “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414 (1989). See also Saxe v. State College Area School District, 240 F.3d 200, 206 (3d Cir. 2001) (holding that there is “no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive….”); Doe v. Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (“Nor could the University proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people”).
The problem with UND’s policy is that it allows for a heckler’s objection to free speech. Someone objecting to speech that might be controversial could claim that they’re being harassed, under this code. And the university, based on this code, could silence that speech.
Clearly, that’s bad policy, though not surprisingly UND isn’t responding to inquiries for comment about it, which is in keeping with the North Dakota’s University System’s long-standing policy of sandbagging and stonewalling requests for transparency and accountability.
“UND did not make a spokesperson available to Campus Reform for comment, despite multiple requests,” reports Oliver Darcy.
This isn’t the first time FIRE and UND have tangled. The group was able to get the expulsion of a UND student falsely accused of rape overturned only after two years of legal wrangling.
But this is what happens when public institutions like our state’s universities are allowed to operate with almost nothing in terms of oversight from elected officials, and with little accountability to the taxpayers.