During the 1980s and early 1990s, many colleges and universities responded to incidents of racial and sexual harassment by adopting campus hate speech codes. In 1994, Arati Korwar reported that more than 350 public colleges and universities had adopted some form of a hate speech code. Proponents of the codes contended that their goal, which was to reduce hateful, prejudiced speech, was legitimate, for such speech should receive little or no First Amendment protection. The courts, however, have repeatedly struck down campus hate speech codes on the First Amendment grounds of vagueness, overbreadth, and their tendency to permit content-based discrimination with respect to the topics that may be discussed or the views that may be expressed on campus.
Hate speech codes tend to be enacted in response to pressure from campus groups that become upset about insensitive or offensive student conduct, such as the use of racial epithets, verbally or in writing, or the perpetuation of ethnic and racial stereotypes, often in the context of fraternity functions. Such was the case at the University of Michigan, which adopted a hate speech code after a group of students had become upset over the use of racial epithets on campus, and at the University of Wisconsin, which adopted a hate speech code with a plan called ‘‘Design for Diversity’’ in response to several incidents including two instances of fraternity functions involving racial and ethnic stereotyping.
Using the Supreme Court’s ‘‘fighting words’’ doctrine as a springboard, which holds that words that are likely to incite an immediate violent response are not entitled to First Amendment protection, campus hate speech codes have attempted to regulate expressions intended to stigmatize or demean an individual on the basis of the person’s race, gender, handicap, religion, national or ethnic origin, age, sexual orientation, marital status, etc. The University of Michigan’s policy, for example, prohibited ‘‘[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed . . . and that . . . [c]reates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.’’
When challenged, in Doe v. University of Michigan (1989), the court found the University of Michigan’s policy to be overbroad, in that it might be applied to restrict speech when the speech in question is merely unseemly or offensive. The court also found the policy to be unconstitutionally vague, because the limits of the scope and reach of the policy were too difficult to discern. In UWM Post v. Board of Regents of University of Wisconsin System (1991), the court struck down the University of Wisconsin’s quite similar policy on the grounds that the hate speech code permitted the university to engage in content-based discrimination with respect to the types of speech that it would permit on campus, a form of ‘‘governmental thought control.’’ These results, combined with the Supreme Court’s ruling in R. A. V. v. City of St. Paul (1992), which struck down a hate-crime ordinance on First Amendment grounds, created a formidable barrier for hate speech codes that in a succession of later cases involving other universities has not been cleared.
In an effort to address the underlying problems caused by the types of speech in question, such as racial or sexual harassment, without running afoul of First Amendment protections, some colleges and universities have more recently taken the approach recommended by Arthur Coleman and Jonathan Alger in their article, ‘‘Beyond Speech Codes: Harmonizing Rights of Free Speech and Freedom from Discrimination on University Campuses.’’ Rather than addressing these underlying problems by prohibiting certain forms of expression, colleges and universities can take the alternative approach of prohibiting the discriminatory harassment itself, even though speech may be involved in the harassing activity. These policies follow the applicable antidiscrimination statutes and standards as closely as possible and avoid any attempt to proscribe particular forms of expression apart from the context of the situation in which such expressions may fit the legal definitions of unlawful harassing activity.
In the higher education context, a violation of Title VI or Title IX occurs if a college or university that receives federal funds fails to provide a nondiscriminatory environment that is conducive to learning. Determining whether a violation has occurred depends on whether the conduct complained of, which may or may not involve speech, is sufficiently ‘‘severe, pervasive or persistent’’ that the victim cannot fully benefit from the educational opportunities provided by the institution. Courts use a ‘‘totality of the circumstances’’ test to assess whether the conduct is sufficiently ‘‘severe, pervasive or persistent’’ standard such that a similarly situated, ‘‘reasonable’’ (not hypersensitive) student would be significantly and adversely impacted in his or her ability to benefit from or participate in educational programs or activities. These protections do not, however, go so far as to entitle a student to complete comfort or agreement with the expressions and opinions encountered in an educational environment. There is a range of conduct that students might find offensive but that is not sufficiently ‘‘severe, pervasive or persistent’’ as to interfere with a ‘‘reasonable’’ student’s educational experience.
In creating alternatives to campus hate speech codes, the First Amendment concern to be avoided is that the same words, phrases, or symbols that might be prohibited by a hate speech code could, in an appropriate setting, be important to use to advance the learning process. For example, a hate speech code that prohibits the use of racial epithets may interfere with the study of important literature such as Mark Twain’s Huckleberry Finn, which uses a particular racial epithet more than 200 times. Study of such literature might even help to address problems of racial bias by making students more aware of the forms and harms of racism if handled with sensitivity and care.
A majority of the Supreme Court recognized in R. A. V. that a hostile environment discrimination claim could survive a First Amendment challenge under the standards that the Court set forth in that case. A college or university policy that seeks to prohibit expression animated by racial prejudice or sexist bias as forms of discriminatory harassment will still need to provide enough specific guidance for individuals to be able to understand the types of behavior that are prohibited under the policy to withstand First Amendment–based overbreadth and vagueness challenges.
DAVID T. BALL
References and Further Reading
Cases and Statutes Cited
See also Fighting Words and Free Speech