College Officials Versus First Amendment
Just how desperately college and university administrators want to control what students say lest anyone take offense or feel “harassed” is revealed by a policy adopted at Iowa State University (ISU).
ISU students are told that they must abide by the school’s policy against “harassment” of anyone in the university community. Students must complete a “training program” consisting of 118 slides online, covering the university’s non-harassment policies and procedures, and then pledge never to violate them.
But what if a student thinks that the ISU policy goes way beyond preventing true harassment and amounts to an abridgment of his rights under the First Amendment?
In that case, ISU reserves the right to withhold the student’s degree. So either the student agrees to abide by the policy even though it may well keep him from speaking out as he’d like to, or have his academic work go for naught. This is the exact dilemma an ISU student, Robert Dunn finds himself in.
He regarded the ISU strictures against harassment to be so sweeping and vague that he couldn’t pledge never to say anything that might violate them.
Particularly troubling was the language that the rules “may cover those activities which, although not severe, persistent, or pervasive enough to meet the legal definition of harassment, are unacceptable…” and that “even First Amendment protected speech activities” may constitute harassment “depending on the circumstances,” including whether other students believe the speech is not “legitimate,” not “necessary,” or lacks a “constructive purpose.”
Amazing – a student can be guilty of “harassment” just because someone else doesn’t think what he said has a “constructive purpose,” is “unacceptable,” or wasn’t really “necessary.” Agreeing to that would mean agreeing to stifle your thoughts on a vast array of controversial topics. Given the extreme sensitivity of many students these days and their eagerness to claim victim status, speaking your mind could readily land you in trouble with campus speech police.
When Dunn told the administration that he wouldn’t pledge to give up his First Amendment rights, an ISU employee with the Orwellian “Office of Equal Opportunity” replied that if a student didn’t agree, it would result in a “hold” on his graduation and the placement of his name on a list for “review” by the dean of students.
Not very comforting – another subjective decision by a school administrator to worry about.
Rather than meekly complying with ISU’s restrictive policy or refusing and taking his chances, Dunn has filed suit against ISU.
The complaint in Dunn v. Leath declares,
Public universities serve our society as a ‘marketplace of ideas’ where young adults who are tomorrow’s leaders are exposed to differing opinions. This marketplace cannot function if students must fear punishment, even expulsion from the university if their views are deemed objectionable by fellow students or administrators.
Dunn’s case is being handled by the Alliance Defending Freedom. ADF senior counsel, Casey Mattox, states “These are anti-speech policies masquerading as ‘harassment’ policies” and adds that they “are not befitting an institution of higher education.”
They certainly aren’t.
Colleges and universities that have adopted similarly vague, overbroad speech codes (whether called that or called “anti-harassment” policies doesn’t matter legally) have lost time and time again. I think there is good reason to believe that ISU will fold and settle rather than lose in court and suffer a sharp, embarrassing rebuke.
The real shame here is that ISU officials have so little regard for free speech and so much angst that someone on campus might find some statement offensive that they insist on muzzling their students.
Since the 1990s, speech codes and “harassment” policies have been repeatedly challenged in federal courts and the challengers have repeatedly succeeded in having them declared in violation of the First Amendment. (The Foundation for Individual Rights in Education has compiled a list of the cases.) In some instances, the judges have even awarded damages against the institution, as in the infamous Modesto Junior College case where school officials prevented a student from handing out copies of the Constitution on Constitution Day.
So why do the administrators at ISU and insist on having a speech code that even they admit is not consistent with the First Amendment, and then demand obedience to it from students on pain of not being allowed to graduate? In this 2015 article published by the Pope Center for Higher Education Policy, George Mason University law professor Todd Zywicki explained that his school’s policy was the doing of mid-level administrators who don’t care much about freedom of speech, but care inordinately about keeping a placid campus with as little clash and confrontation as possible.
And given that these days “progressive” students who have been imbued with what’s accurately called the Social Justice Warrior mentality are apt to create trouble over the tiniest provocation, it’s best to head that off by warning students like Dunn that they should keep their opinions to themselves.
If a private college wants to make itself a haven just for “progressive” students, faculty, and administrators, it is free to do so, but public institutions are bound to uphold the rights protected by the First Amendment. I’m going to keep an eye on this case to see if Iowa State has to back down from its chilling speech policy.
Originally published on Forbes.