College speech codes draw federal scrutiny

The Bush administration has notified college and university officials that federal civil rights regulations do not justify campus speech codes or other rules that inhibit free expression by students and faculty.

The U.S. Education Department’s Office of Civil Rights “has consistently maintained that the statutes that it enforces are intended to protect students from invidious discrimination, not to regulate the content of speech,” wrote Gerald A. Reynolds, assistant secretary for civil rights, in a letter to the nation’s college presidents and other officers.

Speech and expression that offends someone should not be subject to restriction or censorship on the grounds that it constitutes “harassment,” as some colleges have argued, Mr. Reynolds said in the letter, issued without fanfare July 28.

“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 under the statutes enforced by OCR,” Mr. 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,” he said.

“OCR’s regulations and policies do not require or prescribe speech, conduct, or harassment codes that impair the exercise of rights protected under the First Amendment.”

The Bush administration letter comes in the wake of charges by civil liberties groups that speech and conduct codes have been imposed on many college and university campuses to achieve “political correctness” in discussion of contentious issues.

“University campuses are strongholds of left-liberalism where constitutionally protected rights, such as freedom of speech and religion, are routinely violated,” said Wendy McElroy, editor of ifeminists.com and a research fellow for the Independent Institute in Oakland, Calif.

Most victims of college “speech police” are “students who are male, white, conservative, openly Christian or from affluent families,” Ms. McElroy said.

Harvey A. Silverglate, vice president and co-director of the Foundation for Individual Rights in Education (FIRE), a Philadelphia group that promotes free speech and academic freedom, called the OCR ruling “a landmark letter of clarification that deals a powerful blow to administrative censors on America’s college and university campuses.”

“Speech codes are tools that administrators use to quash speech they do not agree with, and to punish students and faculty members for expressions they do not agree with,” said Erich J. Wasserman, FIRE’s executive director.

FIRE has challenged many of the nation’s universities for speech and conduct codes that the group says are used selectively to enforce conformity with views of powerful ideological, political and cultural interests at those schools, including:

• Harvard Law School’s “Sexual Harassment Guildelines,” adopted in 1995 to target “seriously offensive” speech after campus feminists and their allies were outraged by a Harvard Law Review parody of feminist scholarship.

• Shippensburg University’s “Racism and Cultural Diversity” statement that withdrew protection for speech claimed to “provoke, harass, demean, intimidate or harm another” and that defined harassment as “unsolicited, unwanted conduct which annoys, threatens or alarms a person or group.”

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