Despite sincere intentions, colleges and universities may not use federal anti-harassment regulations to squelch free speech, the U.S. Education Department announced recently in a strongly-worded message to schools nationwide.
The Education Department's Office of Civil Rights reiterated that while harassment is barred, schools can't restrict the First Amendment's free speech clause as a preventive measure.
"OCR's regulations are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution," said the body's assistant secretary, Gerald Reynolds.
"OCR has consistently maintained that the statutes that it enforces are intended to protect students from invidious discrimination, not to regulate the content of speech."
The federal statement comes at a time when many institutions of higher learning are grappling over their own debates on civil liberties.
Virtually all have their own policies that protect students' rights -- from those expressing the offensive speech to those who may be stung by their words.
But according to OCR's message, sent to schools earlier this month, harassment "must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive."
"In addressing harassment allegations, OCR has recognized that the offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment from an educational program," Reynolds said. "In order to establish a hostile environment, harassment must be sufficiently serious [i.e., severe, persistent or pervasive] as to limit or deny a student's ability to participate in or benefit from an educational program."
Civil liberties organizations around the country lauded the decision, as did a number of other groups from the political right that charge that left-leaning "speech codes" have hurt students and faculty with conservative, Christian views the most.
"The OCR statement is a vindication of the truth that no governmental regulation, law or policy may override the First Amendment," said Greg Lukianoff, legal and public advocacy director of FIRE, a national campus group for individual liberty that had previously asked OCR to discern free from offensive speech.
"OCR has done a great service for liberty," FIRE co-director Harvey Silverglate added.
"OCR recognizes that there is no inconsistency between civil liberties and civil rights and that civil liberties are a necessary precondition for the continued survival of civil rights."
At some schools, changes are already in the works. The University of Maryland this month revised its rules on public speakers and leafleting, expanding the number of on-campus locations where such activities can occur.
Under the new policy, students, staff and faculty will be able to leaflet at any outdoor spot on campus -- a marked shift from Maryland's old regulations, which limited leafleting and small demonstrations to 10 "free-speech zones."
The move came after a successful suit filed by the American Civil Liberties Union on behalf of a Maryland student.
A similar resolution was reached at the University of Houston, which was sued by the Pro-Life Cougars, a student anti-abortion group prohibited from displaying a picture of a dead fetus in a high-traffic area of campus.
At Dartmouth, in contrast, recent terms have not been characterized by passionate debate over free speech, although the College's Spring term 2001's derecognition of Zeta Psi fraternity for an explicit house newsletter did receive intense ACLU criticism.
The Boston Phoenix, an alternative weekly paper, named College President James Wright as one of several recipients of a "Muzzle Award," given annually to individuals the paper deems to be "anti-free speech zealots." The paper chastised Wright for upholding Zete's derecognition, claiming that the sanction imposed on the fraternity suppressed its First Amendment rights.
At the time, then-acting Dean of the College Dan Nelson said that at least in regard to Zete, free speech was not the issue.
"Dartmouth sanctioned the organization for violations of behavior standards, not for speech," Nelson told The Dartmouth, explaining that through publication of offensive, often sexually explicit newsletters, Zete violated codes of conduct that the fraternity, as a College-affiliated organization, had originally agreed to uphold.
Either way, the First Amendment does not directly apply to Dartmouth, as it is a private institution.
OCR regulations, however, must still be met.
The College outlines its free speech policies as follows, according to the 2003-2004 student handbook: "Freedom of expression and dissent is protected by College regulations.
"Dartmouth College prizes and defends the right of free speech and the freedom of the individual to make his or her own disclosures, while at the same time recognizing that such freedom exists in the context of the law and in responsibility for one's actions."
The handbook also states, "The exercise of these rights must not deny the same rights to any other individual. The College therefore both fosters and protects the rights of individuals to express dissent."
"Protest or demonstration shall not be discouraged so long as neither force nor the threat of force is used, and so long as the orderly processes of the College are not deliberately obstructed."
