Free Speech

How UNC stifles it and what you can do about it

by: David Deerson

Is posting a quote by Ronald Regan on your dorm room wall a violation of school policy? Maybe. The department of Housing and Residential Education has a policy that students must “[a]void using the written or spoken word in a way that demeans, defames, offends, slanders or discriminates [emphasis added].”  So posting a quote like “[p]olitics is supposed to be the second oldest profession. I have come to realize that it bears a very close resemblance to the first,” could get you in hot water with school bureaucrats.

Policies like this have earned UNC a red-light rating from The Foundation for Individual Rights in Education (FIRE). FIRE gives schools one of three rankings based on their policies regarding freedom of expression. A green light rating means that the school has policies which protect free speech (nominally, at least). Yellow light means that the school has ambiguous policies that too easily encourage administrative abuse and arbitrary application. Red light schools, like our own priceless gem, have policies that clearly and substantially restrict free speech.

On Monday, September 17th, the 225th anniversary of the signing of the U.S. Constitution, students got a chance to learn more about how UNC stifles free speech. Robert Shibley, executive vice president of FIRE, delivered a lecture on campus sponsored by the UNC Young Americans for Liberty.

Mr. Shibley discussed various policies at Carolina like the one above that clearly or potentially restrict free expression. One such policy lists “sexually explicit jokes,” “whistling,” and “sexually explicit statements” as “[e]xamples of sexual harassment.” The policy does not say these things may be examples of sexual harassment, but that they are.

Policies like these hamper students’ ability to receive the top-quality education that UNC promises to provide. In an environment where students are silenced in the dorms for fear of being “offensive,” how will students have their ideas challenged? How can they grow? As John Stuart Mill wrote in his seminal 1859 essay On Liberty, “genius can only breath freely in an atmosphere of freedom.”

Education isn’t the only thing at stake; such policies are also often illegal. Take our policy on sexual harassment, which reads:

Unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature that expressly or implicitly imposes conditions upon, threatens, interferes with, or creates an intimidating, hostile, or demeaning environment for an individual’s (I) academic pursuits, (II) University employment, (III) participation in activities sponsored by the University or organizations or groups related to the University, or (IV) opportunities to benefit from other aspects of University life [boldface in original]. – Student Instrument (1)  II.C.1.b.iv

This policy is very similar to the harassment policy found unconstitutional in the case of Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989), one of the first of many court decisions striking down public university harassment policies on First Amendment grounds. The court in that case held that the phrase “involve an express or implied threat to an individual’s academic efforts” was too vague because “it is not clear what would constitute a ‘threat’ to an individual’s academic efforts.” UNC’s policy contains nearly identical language, prohibiting conduct that “expressly or implicitly … threatens, interferes with … academic pursuits,” as well as the even more vague “opportunities to benefit from other aspects of University life.” It can easily be used to punish important protected speech, such as the discussion of sexual roles in a provocative or controversial work of literature. Such academic discussion, above all, should not be suppressed under a flawed understanding of sexual harassment. Many students and faculty members likely censor themselves rather than risk punishment, stifling valuable discussion and dialogue.

Fortunately, there is an easy fix to this kind of policy. The U.S. Supreme Court has already established a legal definition of student-on-student sexual harassment in the educational context. The Court, in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), defined peer harassment as unwelcome discriminatory behavior, directed at a person because of their gender, 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.” The court’s language is much less vague, and more narrowly interpretable, than that of the university. UNC should simply replace their policy, found unconstitutional at the University of Michigan, with the one that is legally sanctioned by the Supreme Court.

I’m sure that these policies were written with the best of intentions to create a healthy and safe environment for students on campus, but, as these policies exist now, they are unnecessarily detrimental to academic and personal freedom. Some speech may make others feel uncomfortable, and that is unfortunate. But, as Dean of Students Jonathan Sauls said in a February 2011 interview with the Daily Tar Hell, “[t]o come here and feel comfortable is to not enjoy a liberal arts education.”

Our speech codes can and should be changed. Luckily, there are students who understand that. In addition to UNC Young Americans for Liberty, a newly forming group, Carolina Advocates for Free Expression (CAFE) is dedicated to remedying our speech codes and educating students, faculty, and administrators about the legal and moral foundations of freedom of speech. I call on all interested students to join the fight against UNC’s unconstitutional policies. If you are interested in helping with CAFE’s efforts, please e-mail president Elle Brightbill at ebrightb@live.unc.edu.

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