Stefan Linge - Political Science 499

Stefan Linge

Political Science 499

How Ambiguous Anti-Bullying/Discrimination, and Peer Harassment Policies

can be an Impediment to Bi-Partisan Civil Discourse on College Campuses.

Introduction

In the technology driven world that we live in, bullying, harassment, and

discrimination can take many shapes and sizes. However, it’s important that any

attempts to curb this behavior does not violate people’s right to free speech and to

engage in productive civil discourse. College campuses are ground zero for this

debate, and the intention of this paper is to examine how the problem exists, and

what can be done to fix it.

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Literature Review

The National Institute for Civil Discourse broadly defines civil discourse as

the rampant exercise of free speech practiced by many to forge innovative solutions.

On the flip side, our founding fathers believed that limiting the limits on what people

could say, was essential for democracy to thrive. The Association of American

Colleges and Universities found that only 30 percent of students agreed that it was

safe to hold unpopular view on campus. This raises a serious question in regards to

why college campuses aren’t ground zero for students and faculty members of all

different types of opinions and beliefs to collaborate and express their views. There

are some explicit dimensions of this problem that exist and in some instances,

colleges and universities have used their anti-bullying/discrimination and peer

harassment policies to the detriment of constitutionally protected civil discourse.

It is impossible for open civil discourse to occur on campus without unabated

access to free speech. A great example of this predicament is the court case DeJohn v.

Temple University. This case is discussed extensively in The Misapplication of Peer

Harassment Laws on College and University Campuses and the Loss of Students Speech

Rights. Mr. DeJohn was a graduate student at Temple University and his National

Guard unit was called to active duty while was enrolled. When he got back, he was

informed that he was dismissed from his academic program. Mr. DeJohn claimed

that he was dismissed for making comments about the dangers of allowing women

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to serve in combat arms jobs in the military. Part of the universities harassment

policy prohibited “generalized sexists remarks” and a federal judge struck it down

deeming it broad and not specifically tailored to a certain interest. This case is not

alone because there are a wide range of areas where similar policies have been used

to stifle speech or interactions. For example, they have used policies to find students

guilty of harassment for making jokes about student groups gaining weight and read

contentious books in the presence of other students. (Majeed) On the flipside, this

has also happened to teachers and faculty. In 2007, Brandeis University in Waltham,

MA, found a professor guilty of racial harassment for explaining the meaning of the

term “wetback” and how it is a derogatory term used to categorize Mexican

immigrants. This is important to civil discourse because it raises the question of

whether someone has the right to be “not be offended” by someone else’s free

speech. For example, Texas A&M universities anti-harassment/student rights policy

mandates respect for personal feelings and freedom from indignity. (Majeed)

Overzealous rationales of these policies have a significant impact on people

with conservative minded political ideals. Professor George Fletcher, a criminal law

professor at Columbia University in New York City, presented a hypothetical case to

his students where a woman seeking an abortion was attacked by an individual and

the fetus died as a result. The woman in this case was thankful for the result. Several

students filed complaints attesting that constituted a hostile environment for female

students. Professor Fletcher was then denied his requests to teach an LLM course he

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was more than qualified to teach. (Majeed) A recent incident at Stanford University

embodies this problem. The Stanford Graduate Student Council and the

administration voted to deny funding to an event hosted by the Anscombe Society

which was centered on traditional sexual ethics and traditional marriage in fear that

it would create a hostile environment for certain groups. (Gonzalez) A third example

took place at DePaul University where school administrators charged the DePaul

Conservative Alliance with harassment for holding an “affirmative action” bake sale.

They said that the sale was in an inappropriate location, even though they had

allowed PETA a table at the event the week before. (Majeed) However, the

marginalization of both conservative and liberal political ideals exists due to

differing political climates found in different geographical locations of the United

States. (Dey) If a student attends a university where the political climate fits his or

hers bias, they may never be forced to step out of their comfort zone, impeding their

educational and professional growth. (Dey)

Another them that is central throughout this issue is these problems exist in

part because colleges and universities don’t put enough emphasis on learning to

listen to other people’s perspective. Only 28 percent of students said that senior

campus administrators from their respective campuses frequently advocate the

need for students to respect perspectives different from their own. (Dey) Likewise,

only one third of students and faculty feel that academic institutions make

perspective taking a major curriculum focus. (Dey) No matter how unpopular a

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group or person may be, every person is entitled to be treated with dignity and

respect, even from their ideological opponents. (Schweitzer) Campuses are full of

different cultural and ethnic events which can help students learn about other

people’s perspective and background.

Lack of perspective taking can ultimately lead to the framework of civil

discourse breaking down. (Khaja) This can begin even with backlash towards

common ambiguous terms such as diversity and social justice. (Khaja) Use of these

words can automatically trigger resistance from people who think their opinion

doesn’t matter doesn’t matter in that context. (Khaja) However, the lack of

perspective taking starts outside the classroom with the rise of the technology age.

Anonymous dialogue destroys the framework of civil discourse because it allows

people to say whatever they want without fear of repercussions. (Khaja) The lack of

classes and resources for students to deal with this rampant incivility also is part of

the problem. An idea for resolving this would to mandate and put more emphasis on

classes and workshops that help members of the college community talk about

tough issues. (Khaja) There are also issues with faculty that can harm widespread

civil discourse. If professors are relying on adequate student course evaluations to

make tenure, they might be less willing to push or discuss politically or socially

contentious topics that might hurt or offend someone’s feelings. (Khaja)

Limiting civil discourse in any form has serious consequences. The first

major problem is it doesn’t allow for colleges to be a true “marketplace of ideas” and

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hinders educational and professional growth. Supreme Court Justice Anthony

Kennedy, writing for the majority in the case Rosenberger v. University of Virginia,

described free speech suppression and creative rationales as “stifling the

marketplace of ideas”, which is the backbone of academia. The court declared in the

landmark case that “the government may not regulate speech when personal

opinion is the rationale for the speech restriction.” Limiting civil discourse and free

speech has a multifaceted effect on types of speech. Even when these types of

policies don’t have the intention of suppressing speech, their presence can deter

people from opening their mouth to begin with for fear of repercussions. The

vagueness of what constitutes “harassment” or “offensive” can leave students and

faculty wondering what’s acceptable to say and what is not. (Majeed) Finally,

limiting free speech and civil discourse effectively diminishes important social and

political discourse. (Majeed) According to Supreme Court precedence, contentious

political discourse receives maximum protection under the first amendment.

(Schweitzer) If universities write and apply these policies in an overbroad manner,

they are not only harming the student’s/faculties education development, they are

infringing on their constitutionally protected right to speak their mind. (Majeed)

Outside of slander, libel, and fraudulent representation, strict requirements need to

be met before any speech, no matter how inflammatory or hateful, can be silenced

or punished. (Schweiter)

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Question: Is there evidence of ambiguous language in college universities anti-

harassment/discrimination policies, and does it have an impact on open and

unabated civil discourse?

Method: A text analysis will be done on one policy from one college university from

each of the fifty states. The universities will be picked at random. (In the case of

limited options, the first school with a defined anti-discrimination/peer harassment

policy will be analyzed.) There will be no focus on states lacking a school with a

defined policy, or a policy that doesn’t yield any results. The terms that will be coded

for are terms found in court cases surrounding the topic, phrases that research has

shown to lead to the framework of civil discourse breaking down, and words that

could be interpreted as ambiguous or having no definitive definition. (I will also be

coding for interesting terms and ways to word things.)

The terms are:

Indignity: treatment that causes one to feel shame or loss to one’s dignity or

feelings. (Dignity)

Insensitive: lacking feeling or tact (Sensitive, Insensitivity, sensitivity)

Antagonize: hostile; unfriendly. (Antagonistic)

Offensive: Perceived to be insulting by a listener. (Offend, Offending)

Feelings: A state of consciousness, resulting from emotion, sentiment or desire.

(Personal Feelings)

Diversity: The condition of being composed of different elements. (Diverse)

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Schools:

Alabama University of Alabama

Alaska University of Alaska

Arizona Arizona State University

Arkansas University of Arkansas

California USC

Colorado University of Colorado

Connecticut University of Connecticut

Delaware University of Delaware

Florida University of Miami

Georgia University of Georgia

Hawaii University of Hawaii

Idaho Boise State

Illinois University of Illinois

Indiana Ball State

Iowa University of Iowa

Kansas Kansas State

Kentucky University of Kentucky

Louisiana Mcneese

Maine Maine Maritime

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Maryland Morgan State

Massachusetts U Mass

Michigan University of Michigan

Minnesota University of Minnesota

Mississippi Mississippi State

Missouri Missouri State

Montana University of Montana

Nebraska University of Nebraska

Nevada UNLV

New Hampshire University of New Hampshire

New Jersey Rutgers University

New Mexico University of New Mexico

New York NYU

North Carolina North Carolina State University

North Dakota University of North Dakota

Ohio University of Miami

Oklahoma University of Oklahoma

Oregon Oregon State

Pennsylvania Penn State

Rhode Island University of Rhode Island

South Carolina Clemson

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South Dakota South Dakota

Tennessee University of Tennessee

Texas UT Austin

Utah University of Utah

Vermont University of Vermont

Virginia University of Virginia

Washington UW

West Virginia none

Wisconsin University of Wisconsin

Wyoming none

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Data:

Indignity/Dignity:

Missouri State University: "The University recognizes the human dignity of each

member of the Missouri State University community and believes that each member

has a responsibility to promote respect and dignity for others so that all employees

and students are free to pursue their goals in an open environment, able to

participate in the free exchange of ideas, and able to share equally in the benefits of

the University’s employment and educational opportunities."

University of Illinois: "The University is committed to the fundamental principles

of academic freedom, equality of opportunity, and human dignity."

Sensitive/Insensitive/Sensitivity/Insensitivity:

University of Iowa: "Isolated behavior of the kind described in II-14.2, which does

not rise to the level of harassment but which if repeated could rise to that level,

demonstrates insensitivity that may warrant remedial measures."

Missouri State University: "Isolated behavior of the kind described in this policy,

which does not rise to the level of discrimination or harassment to be in violation of

this policy, but which if repeated could rise to that level, demonstrates insensitivity

that may warrant remedial measures"

Oregon State University: “Acts of discrimination, harassment and insensitivity

hurt and degrade all members of the campus community whether victim,

perpetrator, or observer.”

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University of Illinois: "Making yourself aware of and sensitive to issues of

discrimination and harassment is essential to creating and maintaining an

environment that benefits everyone."

University of Alabama: The conduct alleged to be harassment will be evaluated

from the perspective of a reasonable person in a similar situation and not simply the

particular sensitivity or reaction of an individual

Antagonize/Antagonistic: None

Offensive/Offending/Offend:

University of Rhode Island: "Harassment is offensive conduct directed at an

individual or group that has the effect of unreasonably interfering with an

individual’s work or academic performance or creating a hostile environment."

Mississippi State University: "so severe or pervasive, and objectively offensive

that it unreasonably interferes with the victim’s ability to participate in or to realize

the intended benefits of an institutional activity, opportunity, or resource,

unreasonably interferes with the victim’s work or living environment, or deprives

the victim of some other protected right. "

Morgan State University: "Discrimination includes conduct (oral, written, graphic,

or physical) directed against any person or group of persons because of race, color,

national origin, religion, sex, sexual orientation, age, marital status or disability and

that has the purpose or reasonably foreseeable effect of creating an offensive,

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demeaning, intimidating, or hostile environment for that person or group of

persons."

Maine Maritime Academy: “Offensive Jokes”

University of Virginia: "Harassment: Unwelcome conduct directed against a person

based on one or more of that person’s protected characteristics or statuses, which

conduct is so severe or pervasive that it interferes with an individual’s employment,

academic performance or participation in University programs or activities, and

creates a working, learning, program or activity environment that a reasonable

person would find intimidating, hostile or offensive. "

Missouri State University: Harassment may include, "Discussion in an

instructional setting of controversial or even offensive material that is relevant to

the subject matter being taught”

• "In some instances, innuendo or other suggestive, offensive or derogatory

comments or jokes about sex, gender-specific traits, or any basis not related to the

applicable education requirements for students or the applicable job requirements

for employees.”

• “Displaying of offensive material or objects”

New York University: "Offensive or degrading remarks, verbal abuse, or other

hostile behavior such as insulting, teasing, mocking, degrading or ridiculing another

person or group; "

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University of Michigan: "has the purpose or effect of unreasonably interfering with

an individual’s employment or educational performance or creating an intimidating,

hostile, offensive, or abusive environment for that individual’s employment,

education, living environment, or participation in a University activity.”

Boise State University: "Racial Harassment: Racial harassment is conduct directed

toward another person (or identifiable group of persons) on the basis of race, color,

national origin, or ancestry that has the purpose or effect of unreasonably

interfering with an individual's work or academic performance or creating an

intimidating, hostile, or offensive environment for that individual's work, education,

or participation in a university activity. The conduct may be words, gestures, or

actions. "

• "Harassment is conduct towards another person or identifiable group of

persons including, but not limited to, unwelcome comments or other conduct that

unreasonably interferes with an individual's work or academic performance or

creates an intimidating, hostile, or offensive environment for that individual's work,

education, or participation in a university activity"

University of Kentucky: Harassment may include;

• "The conduct is sufficiently severe, pervasive or persistent to interfere with

an individual’s work, academic or program participation, or creates an environment

that a reasonable person would consider intimidating, hostile, or offensive."

• “Offensive jokes, slurs, epithets, or name calling”

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• “Offensive objects or pictures”

Kansas State University: "creating an intimidating, hostile, or offensive work

environment or on-campus housing environment for the person(s); or (b)

unreasonably interfering with the work, or on-campus housing, of the person(s);

and (2) is sufficiently severe or pervasive that it alters the terms, conditions, or

privileges of a person's employment or use of on-campus housing. "

University of Georgia: “Such conduct creates or has the intention of creating an

intimidating, hostile, or offensive working and/or learning environment.”

University of Colorado: "Unwelcome conduct by an individual(s) against another

individual based upon her/his Protected Class that is sufficiently severe or

pervasive that it alters the conditions of education or employment and creates an

environment that a reasonable person would find intimidating, hostile or offensive."

University of Southern California: "Such conduct has the purpose or effect of

interfering with an individual's work or academic performance, or creating an

intimidating, hostile, offensive or otherwise adverse working or learning

environment."

• "Harassment—Physical or verbal hostility, or any unwelcome or offensive

conduct or communication, directed toward someone or toward a group of

individuals, because of their protected category status"

University of Alabama: “An isolated incident of hostile behavior, although

offensive, usually will not be sufficient to establish a claim of illegal harassment. For

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example, generally, a single sexual joke, offensive epithet, or request for a date does

not constitute sexual harassment; however, being subjected to such jokes, epithets

or requests repeatedly may constitute sexual harassment.”

Feelings/Personal Feelings:

University of Alabama: “The University encourages students, faculty, and

staff to express freely, responsibly, and in an orderly way opinions and feelings

about any problem or complaint of harassment.”

Diversity/Diverse:

University of Oklahoma: "Diversity is one of the strengths of our society as

well as one of the hallmarks of a great university. The University supports diversity

and is committed to maintaining employment and educational settings that are

multicultural, multiracial, multiethnic, and all-inclusive. Respecting differences is

one of the University’s missions. "

University of Illinois: "The overall goal of our campus is to serve as an

influential lesson for students, faculty, staff and visitors, in order to show how a

diverse and all-inclusive society can be both functional and successful.”

"The University is deeply committed to providing its faculty, staff, students and

visitors with a working and learning environment that is diverse, inclusive, and

respectful."

Interesting Statements:

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UT Austin: "Findings will be based on the totality of circumstances

surrounding the conduct complained of, including but not limited to: the context of

that conduct, its severity, frequency, whether it was physically threatening,

humiliating, or was simply offensive in nature."

Clemson: "Clemson University does not discriminate against any individual

or group of individuals on the basis of age, color, disability, gender, national origin,

race, religion, sexual orientation or veteran's status or genetric information."

Rutgers: "Rutgers University prohibits discrimination and harassment based

on sex, race, religion, color, national origin, ancestry, age, sex, sexual orientation,

gender identity and expression, disability, genetic information, atypical hereditary

cellular or blood trait, marital status, civil union status, domestic partnership status,

military service, veteran status, or any other category protected by law"

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Analysis/Findings

The Supreme Court has generally held that content-based speech restrictions

are permissible if and only if they are tailored to a specific government interest.

(Volokh) After examining schools from all corners of the United States it’s evident

there are some policies that wouldn’t pass even the most lax judicial litmus test.

For example, Missouri State University at one part describes harassment as

"Discussion in an instructional setting of controversial or even offensive material

that is relevant to the subject matter being taught” If people aren’t ever exposed to

material they may deem offensive or politically correct, this problem will only get

exponentially worse with time. The objective here isn’t to classify these terms as

categorically false, but to examine the context and see if there’s a better, less

ambiguous way to say the same thing. The problem with ambiguity in the rules is,

with no defined line between right and wrong, they can be used to suppress

important speech and civil discourse. Policies that mandate freedom from offensive

jokes, pictures, controversial material, ridiculing ect, have no place on college

campuses.

The issue with using terms such as “insensitivity” to describe harassment is,

with no exact definition of right and wrong, people can use their own bias to either

agree or disagree with the complaint. For example, if a conservative student claims a

liberal student is harassing them, with no litmus test, the outcome is probably going

to be swayed by the administrators own personal bias.

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There are plenty of possible legal remedies to this issue, but that’s not the

objective here. There are three distinct ways to address this problem that don’t

involve going to court. Schools should rid these policies of all ambiguous terms,

mandate classes on perspective taking, and not consider student evaluations when

promoting faculty.

Universities harassment policies should only outlaw

harassment/discrimination on the basis of concrete characteristics. Ethnicity, sexual

orientation, race, sex, age, and political affiliation are all great examples. Terms such

as insensitivity, offensive, diversity, and dignity should all be removed at once. This

would open the floodgates to widespread bipartisan civil discourse.

Another way to help this issue is to mandate classes on perspective taking.

This doesn’t have to be a semester long course; it could potentially include short

online courses, workshops, and or focus groups. This would show students and

faculty that the university is serious about including everyone and would remove

fears of backlash. It would also give people great tools to be successful and return

civility to campus.

A third idea is to remove student evaluations from consideration when

promoting teachers. Doing so would allow teachers to promote ideas and

discussions that may be deemed controversial without fears of harming their

careers. There’s plenty of other ways to evaluate teachers without impeding the

promotion or discussion of important social and political issues.

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In conclusion, it’s fairly evident that ambiguous language exists in

universities harassment policies. Reforming these policies would set a definitive line

between what’s acceptable and what’s wrong and would open the gates to

widespread bipartisan civil discourse.

Works Cited

1. Khaja , Khadija, Daniel Griffith , Kathy Grove, and Ian McIntosh .

"Discovering Common Ground through Civil Discourse ." : n. pag. Web. 1

Mar. 2014.

2. Schweitzer , Thomas. "Hate Speech on Campus and the First Amendment:

Can They Be Reconciled?." Digital Commons @ Touro Law Center : n. pag.

Web. 1 Mar. 2014

3. Dey , Eric . "Engaging Diverse Viewpoints: What Is the Campus Climate for

Perspective-Taking?." Association of American Colleges and Universities :

n. pag. Web. 1 Mar. 2014.

4. Gonzalez , Mike. "Intolerance and Stanford’s Free-Expression Tax." .

National Review Online , 1 Jan. 2014. Web. 1 Mar. 2014.

<http://www.nationalreview.com/corner/373740/intolerance-and-

stanfords-free-expression-tax-mike-gonzalez>.

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5. Majeed , Azhar. "The Misapplication of Peer Harassment Law on College

and University Campuses and the Loss of Student Speech Rights." FIRE,

Foundation for Individual Rights in Education: n. pag. Web. 1 Jan. 2014.

6. Volokh, Eugene. "Freedom of Speech, Permissible Tailoring and

Transcending Strict Scrutiny." : n. pag. Web. 1 Apr. 2014.

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Stefan Linge - Political Science 499