Home

A national advocate for students' rights has accused Rutgers University and Princeton University of infringing their students' First Amendment protections.

The Foundation for Individual Rights in Education (FIRE), in its 2009 report Spotlight on Speech Codes, rated colleges as red, yellow, or green light schools.

"FIRE rates a university as a 'red light' if the institution maintains at least one policy that both clearly and substantially restricts free speech -- 'clear' meaning that the restriction is obvious on the face of the policy, and 'substantial' in that a significant amount of speech is affected," Samantha Harris, FIRE's speech code research director told The Jewish State.

Harris said that because Princeton is a private institution, it is not legally bound by the First Amendment, which is designed to explicitly protect free speech. Nonetheless, Princeton promises its students free speech, and therefore Princeton students "should have the same rights as their counterparts at New Jersey's public institutions," Harris said.

As a public institution, Rutgers is legally bound by the First Amendment.

Harris said that Rutgers earned the "red light" with its definition of "bias," which, if violated, "may warrant intervention": "an act -- verbal, written, physical, psychological -- that maligns, threatens, or harms a person or group on the basis of race, religion, color, sex, age, sexual orientation, national origin, ancestry, disability, marital status, or veteran status."

The definition is under the purview of Rutgers' Office of Social Justice Education and LGBT Communities (SJE). SJE's director, Cheryl Clarke, did not return two phone calls and an email laying out FIRE's accusations and The Jewish State's questions regarding the controversy. At press time, Rutgers Senior Director of Media Relations Greg Trevor had not yet been able to get a school administrator to speak with The Jewish State, which held the story last issue to give the school more time to address the issue.

Harris said FIRE's objection to the "bias" definition was that it "suffers from overbreadth -- the prohibition on threats is legitimate, as is the prohibition on physical acts, but the prohibition on any 'verbal' or 'written' act that 'maligns' anyone on the basis of protected characteristics prohibits protected expression. Indeed, this policy threatens core political expression, since there may be many political viewpoints the expression of which might 'malign' others, since malign simply means to 'speak unfavorably about'."

At Princeton, Harris pointed to two policies incompatible with the First Amendment. The first is part of the university's Guidelines for the Use of IT Resources, which prohibit "inappropriate images, sounds, or messages" that are "hostile." Harris said that the university may prohibit the creation of a "hostile" environment and still be within the confines of the First Amendment.

They may not, she said, prohibit the transmission of one "hostile" message.

"A 'hostile environment' is something that is defined by law and includes severe and ongoing conduct that unreasonably interferes with an individual's work or educational opportunities, whereas a 'hostile message' could refer to almost anything, from an email expressing anger to an email expressing a controversial political viewpoint that offends its recipient," Harris said. "With a policy this broad in place, Princeton students are theoretically at risk of punishment for almost any controversial expression over email."

The second problematic policy, according to Harris, is the "Rights, Rules, and Responsibilities" policy vis-à-vis "Respect for Others." It prohibits "Abusive or harassing behavior, verbal or physical, which demeans, intimidates, threatens, or injures another because of personal characteristics or beliefs or their expression."

Harris said that this, too, is "overbroad," because while prohibiting threats, physical abuse, etc. are legitimate exercises of university authority, prohibiting expression is not.

"Unless it is part of a pattern of conduct that is severe and ongoing, speech that is merely demeaning does not, on its own, constitute harassment of the sort that is not protected by the First Amendment," Harris said.

In response, Princeton spokeswoman Emily Aronson said the university must strike an appropriate balance between free expression and providing an environment in which students feel safe, secure, and comfortable.

"The policies in the university's 'Rights, Rules, Responsibilities' policy document, as well as our other guides for conduct, were developed with the goal of both respecting our students' rights of freedom of expression and vigorous debate and also fostering conditions that are respectful of the wellbeing of each member of the university community, and the social and academic wellbeing of the university as a whole," Aronson told The Jewish State in an email. "Our 'Respect for Others' policy is intended to prevent the same types of hate speech and abusive behavior that are restricted by state and other statutes."

Aronson said the university does not disclose information about disciplinary action, so she could not reveal whether any students have been punished for violating the policy. But, she said, the university does value free expression, and believes that civility must also be practiced.

"As an academic community, we respect the identity, individuality, and freedom of each member," Aronson said. "At the heart of our policy is the conviction that the freedom to teach and to learn depends upon the creation of appropriate conditions and opportunities on campus, and all members of the university community share the responsibility for securing and sustaining the conditions conducive to this freedom."

The constitutional perspective

The Jewish State also spoke with Andrew J. Coulson, director of the Center for Educational Freedom at the Cato Institute. Coulson said that he disagrees with FIRE's assertion that the Rutgers policy restricts political speech, because politics is not listed among the subject areas to which the "bias" definition applies.

"However, that said, it still seems to me that the Rutgers policy does potentially tread on students' free speech rights, because it's considered bias, for instance, to malign particular religious groups, which just obviously means to criticize particular religious groups," Coulson said. "And yet, you could easily imagine a comparative religion class where constitutionally protected aspersions are cast on medieval Catholicism because of the Inquisition, or on militant Islamists for targeting civilians."

Coulson added that although the Rutgers policy doesn't threaten intervention in every perceived violation, "it certainly reserves the right to do that, and so it seems to me a breeding ground for First Amendment law suits."

For Princeton, Coulson said it's less a legal issue than an educational issue. If teachers and students are made to believe they might be punished for speech that someone else considers hostile, he said, it could prove severely and unnecessarily limiting to an environment charged with fostering academic growth.

"It's hard to imagine a vigorously dynamic intellectual culture in which no one is ever offended by anything anyone else has to say," Coulson said. "So, if they were to strictly enforce a prescription against hostile speech broadly construed, it's hard to imagine Princeton students ever really gaining the benefit of the experience of formulating and receiving constructive criticism."

In terms of striking a balance between protecting speech and protecting a student's sense of identity, Coulson suggested leaving much of the responsibility up to the teachers. The institution itself, he said, should stick to intervening only on cases of egregious violations of established norms of acceptable conduct, rather than trying to create broad rules by which individual cases would have to be judged.

Coulson was asked about speech code trends, and said that since the 1980s there has been a noticeable proliferation of such policies. Thirty years ago, he said, there were far fewer universities with detailed speech codes.

"But now I think it's the norm, and there are very few universities that do not have these kinds of codes," Coulson said. "And when I look at these codes at Rutgers and Princeton, it's starting to look like they are at the very least becoming incompatible with a liberal education, and in the case of public universities, incompatible with the First Amendment."