Office for Civil Rights Trumpets Students’ Rights Over College Codes

A resounding affirmation of free-speech rights on college campuses was recently made by the Office for Civil Rights of the U.S. Department of Education.

In a “Dear Colleague” letter dated July 28, 2003, OCR Assistant Secretary Gerald Reynolds addressed concerns that OCR’s antidiscrimination policies required restricting speech. As Reynolds noted in his letter, “Some colleges and universities have interpreted OCR’s prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications.”

Such interpretation have given rise to byzantine speech codes at colleges and universities nationwide. Campuses have also instituted such things as “Free Speech Zones,” with the understanding being that the rest of the campus is a restricted-speech zone. Civil libertarians and First Amendment champions have been harshly critical of those, saying that at public universities (which fall under the First Amendment), the entire campus is a free speech zone. Reynolds’ letter bolsters their position.

“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 statues enforced by OCR,” Reynolds writes. “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.”

Recent actions concerning offensive speech at University of North Carolina institutions shows that they are among those laboring under the misinterpretation rectified by Reynolds letter. This past year, UNC-Chapel Hill, threatened to revoke its recognition of several student groups, most of them Christian organizations, on the basis that the groups “excluded persons from membership and full participation based on race, gender or religious belief.” Public outcry, in part brought by FIRE, forced UNC-CH to back down. Even so, Chancellor James Moeser said that the issue “is not a simple matter. While the University continues to seek to ensure that our facilities and resources are not used in any way that fosters illegal discrimination, we also wish to uphold the principles of freedom of expression.”

N.C. State investigated — and exonerated — Prof. Philip Muñoz after a black student charged him in 2002 with discrimination for not being sufficiently critical of a white student who said “go back to Africa” to the black student prior to the beginning of the class. Muñoz had entered the class while the students were arguing over the black student’s comments that America and its founders were racist and corrupt, and upon the “go back to Africa” remark stopped their argument and said discourse in his class would be civilized and academic.

Even though Muñoz was exonerated, the incident was cited this summer in The News & Observer as one of two proofs of N.C. State’s poor climate for racial diversity. The other incident was racially offensive graffiti written in the “Free Expression Tunnel,” the appearance of which prompted Chancellor Marye Anne Fox to proclaim, “It’s good to have a place to have free expression. First Amendment speech is valued on campus. But when it goes beyond the boundaries and advocates violence or is just inappropriate behavior among civilized people, that’s just too much.”

UNC-Wilmington investigated (and exonerated) Prof. Mike Adams for harassment in 2001-02 for his response to a student’s e-mail. The student, Rosa Fuller, sent a campuswide e-mail blaming the U.S. for the terrorist attacks on its soil, since the U.S. is the world’s “main source of oppression.” Adams responded to all recipients by saying Fuller’s opinions were “undeserving of serious consideration” and “an intentionally divisive diatribe.” Ironically, given UNCW’s subsequent investigation of Adams, which included poring over the rest of his e-mail messages for corroborating evidence of the alleged harassment, Adams noted “The Constitution protects your speech just as it has protected bigoted, unintelligent, and immature speech for many years.”

As it turns out, Adams’ “harassing” e-mail was well in line with OCR’s interpretation of the First Amendment’s primacy over its policies against harassment. “No OCR regulation,” Reynolds writes, “should be interpreted to impinge upon rights protected under the First Amendment to the U.S. Constitution or to require recipients to enact or enforce codes that punish the exercise of such rights.”

Turns out students’ rights are a “simple matter” after all.