Against the Current, No. 34, September/October 1991
The following “ACLU Policy Statement on Free Speech and Bias on College Campuses,” which we print here for our readers’ information; was issued in response to several university policies. All footnotes are part of the ACLU’s text.Preamble:
The significant increase in reported incidents of racism and other forms of bias at colleges and universities is a matter of profound concern to the ACLU. Some have proposed that racism, sexism, homophobia and other such biases on campus must be addressed in whole or in part by restrictions on speech The alternative to such restrictions, it is said, is to permit such bias to go unremedied and to subject the targets of such bias to a loss of equal opportunity. The ACLU rejects both these alternatives and reaffirms its traditional and unequivocal commitment both to free speech and to equal opportunity.Policy:
1. Freedom of thought and expression are indispensable to the pursuit of knowledge and the dialogue and dispute that characterize meaningful education. All members of the academic community have the right to hold and to express views that others may find repugnant, offensive or emotionally distressing. The ACLU opposes all campus regulations which interfere with the freedom of professors, students and administrators to teach, learn, discuss and debate or to express ideas, opinions or feelings in classroom, public or private discourse.(1)
2. The ACLU has opposed and will continue to oppose and challenge disciplinary codes that reach beyond permissible boundaries into the realm of protected speech, even when those codes are directed at the problem of bias on campus.(2)
3. This policy does not prohibit colleges and universities from enacting disciplinary codes aimed at restricting acts of harassment, intimidation and invasion of privacy.(3) The fact that words may be used in connection with otherwise actionable conduct does not immunize such conduct from appropriate regulation.(4) As always, however, great care must be taken to avoid applying such provisions over-broadly to protected expression. The ACLU will continue to review such college codes and their application in specific situations on a case-by-case basis under the principles set forth in this policy and in Policy 72.(5)
4. All students have the right to participate fully in the educational process on a nondiscriminatory basis. Colleges and universities have an affirmative obligation to combat racism, sexism, homophobia and other forms of bias, and a responsibility to provide equal opportunities through education. To address these responsibilities and obligations, the ACLU advocates the following actions by colleges and universities:
a) to utilize every opportunity to communicate through its administrators, faculty and students its commitment to the elimination of all forms of bigotry on campus;
b) to develop comprehensive plans aimed at reducing prejudice, responding promptly to incidents of bigotry and discriminatory harassment, and protecting students from further such incidents;
c) to pursue vigorously efforts to attract enough minorities, women and members of other historically disadvantaged groups as students, faculty members and administrators to alleviate isolation and to ensure real integration and diversity in academic life;
d) to offer and consider whether to require all students to take courses in the history and meaning of prejudice, including racism, sexism and other forms of invidious discrimination;(6)
e) to establish new student orientation programs and continuing counselling programs that enable students of different races, sexes, religions, and sexual orientations to learn to live with each other outside the classroom;
f) to review and, where appropriate, revise course offerings as well as extracurricular programs in order to recognize the contributions of those whose art, music, literature and learning have been insufficiently reflected in the curriculum of many American colleges and universities;
g) to address the question of defacto segregation in dormitories and other university facilities; and
h) to take such other steps as are consistent with the goal of ensuring that all students have an equal opportunity to do their best work and to participate fully in campus life. This policy is issued in connection with, and is intended as an interpretation and enhancement of, the binding resolution on racist speech adopted at the 1989 Biennial Conference. That resolution provides:
The ACLU should undertake educational activities to counter incidents of racist, sexist, antisemitic and homophobic behavior (including speech) on school campuses and should encourage school administrators to speak out vigorously against such incidents. At the same time the ACLU should undertake educational activities to counter efforts to limit or punish speech on campuses.Notes
1. See, generally, ACLU policies 60,63,65 and 71.
2. The ACLU to date has opposed overbroad student speech codes adopted by the University of Connecticut, the University of Michigan, the University of Wisconsin and the University of California.
3. Although “harassment,” “intimidation,” and “invasion of privacy” are imprecise terms susceptible of impermissibly overbroad application, each term defines a type of conduct which is legally proscribed in many jurisdictions when directed at a specific individual or individuals and when intended to frighten, coerce, or unreasonably harry or intrude upon its target. Threatening telephone calls to a minority student’s dormitory room, for example, would be proscribable conduct under the terms of this policy. Expressive behavior which has no other effect than to create an unpleasant learning environment, however, would not be the proper subject of regulation. See ACLU Policy 72 on sexual and other forms of discriminatory harassment on campus. See also Policy 316.
4. For example, intimidating phone calls, threats of attack, extortion and blackmail are unprotected forms of conduct which include an element of verbal or written expression.
5. In determiningwhethera university disciplinary code impermissibly restricts protected speech, there must be a searching analysis both of the language of the code and the manner in which it is applied. Many factors, which are heavily fact-oriented, must be considered, including time, place, pattern of conduct and, where relevant, the existence of an authority relationship between speaker and target.
6. All courses and programs must be taught consistent with the principles prescribed in ACLU Policy 60.