SDSU abuse policies under FIRE
October 27, 2011
Two harassment and abuse policies at San Diego State are on the Foundation for Individual Rights in Education’s “yellow light” caution list. The national free-speech group said each policy has the potential to infringe on an SDSU student’s right to free speech.
SDSU has been a free speech campus since 2005. FIRE upgraded SDSU to a yellow-light grade in August, after a change to the university’s academic computer use policy helped persuade FIRE to remove its previous red-light grade.
According to FIRE’s director of legal and public advocacy, Will Creeley, the problem with the two harassment and abuse policies is certain words are too ambiguous. This is something UC Los Angeles constitutional law professor Eugene Volokh said could lead to a violation of students’ free speech rights based on personal interpretations.
“The policies are vague and overbroad, and therefore unconstitutional,” Volokh said.
The first is the Harassment and Abusive Behavior policy from the SDSU Student Organization Handbook. The second is the Physical Abuse and Harassment policy which, according to SDSU Director of Residential Education Christy Samarkos, all students must sign before moving into the residential halls.
Both policies were on SDSU’s website at the start of this semester.
Housing license agreement
The Physical Abuse and Harassment policy states: “Physical, verbal and other abusive behavior, and threats of physical abuse toward residents, guests or staff are violations of policy and will not be tolerated.”
Should any student living in the residence halls violate this legally binding policy, he or she could be removed from the residence hall, evicted or charged with a criminal offense. Samarkos said this is to protect students living on campus.
“Our goal is to create safe, secure and hopefully respectful communities,” Samarkos said. “This is their home, so we want them to feel comfortable and safe.”
However, SDSU Associate Director of Residential Education Darrell Hess said the policy is only to protect students from genuine harassment and abuse, not to give them an outlet to complain about behavior they may find offensive.
“We want to make sure their rights are upheld,” Samarkos said.
According to FIRE, the potential infringement of student rights is how vaguely abuse is defined. Volokh said punishable abuse should be limited to physical behaviors and threats of violence, instead of generalizing to include verbal and “other” types of abuse.
Creeley said even though the policy may have examples of what qualifies as abusive behavior, including sexual and racial harassment, fighting and threats of violence, it does not mean those examples are the only ones the policy can reprimand.
This, he said, is because the word “other” is included in the definition of abuse.
“Any number of expressive activities could perhaps be constituted as ‘other’ abusive behavior, were they deemed to be so by the audience,” Creeley said.
Samarkos and Hess were not sure when the policy started including “other” as a type of abuse, but Hess said it is included for a reason.
“Things change every day in the world around us,” he said. “New ways of harassing and intimidating people are going to come up, and we want to make sure we say harassment and intimidation are not allowed, regardless of the form.”
FIRE’s other main issue with the policy was how it included verbal speech as a type of abuse, because most forms of speech are legally protected by the First Amendment, except for threats of violence. Volokh agreed, as he said it is almost impossible to accurately define what type of speech is or is not abusive.
“There’s no way to tell if calling someone a jerk, which is protected under the First Amendment, qualifies as verbal abuse,” Creeley said. “You’ve effectively left the entire campus only able to speak to each other in a way that the most sensitive person on campus would find acceptable.”
However, Samarkos said name-calling and other forms of personally offensive speech would not be investigated or prosecuted by the SDSU Housing Administration and Residential Education.
“We have people who get called names,” she said. “People have the right to call other people names. That’s not something we can hold someone accountable for in a judicial process.”
Creeley said by allowing verbal and other behaviors to qualify as abusive in on-campus housing, students who live there are robbed of not only their campus free speech rights, but also the right to privacy and security in their own homes.
“The university, by enforcing student speech, is governing what happens at home,” he said. “There’s no place that the student can go to speak their mind freely.”
Student Organization Handbook
The Abusive Behavior policy states officially recognized student organizations are prohibited from participating in organizational activities that make “specific members of the campus community the subject of harassment, intimidation or hostility” based on a variety of factors, including race, gender, disability, sexual orientation, religion or national origin.
Randy Timm, director of SDSU Student Life & Leadership, said the policy is meant to protect students from being negatively targeted by student organizations. However, he said this has not been a problem at SDSU.
“The students respect each other and they don’t go there,” he said. “We do a good job of respecting each other on campus.”
Creeley said FIRE believes the terms “harassment” and “intimidation” are too vague in the policy and should be redefined to reflect the Davis standard.
The Davis standard, which FIRE said is considered to be the current federal policy for harassment in education, stems from the 1999 Davis v. Monroe County Board of Education Supreme Court decision.
According to FIRE, the Davis standard declares that, in order for an act of harassment or intimidation to be unprotected, “expression has to be so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”
Creeley said by redefining harassment and intimidation to the Davis standard, SDSU would protect not only students’ free speech rights, but also policy enforcers themselves, who may make incorrect disciplinary decisions based on the improper wording.
“If they define harassment properly … everybody knows exactly what they’re talking about,” he said.
The other problem FIRE has with the policy is use of the word “hostility,” which it said should be removed completely.
According to Creeley, allowing hostility to be included in the policy could allow any number of student organization activities to be deemed unlawful, including last month’s affirmative-action bake sale satire at the UC Berkeley, hosted by the university’s College Republicans.
Creeley said a similar event at SDSU could legally be shut down by campus police based on the current policy.
“I don’t think it’s just a matter of vagueness and how harassment is read,” Volokh said. “It makes any student organization the subject of punishment because of hostility.
“That can’t be right. That kind of restriction is too broad and unconstitutional.”
Student Conduct Code
Samarkos and Timm both said their administrations’ policies follow the SDSU Student Conduct Code, which they say clearly defines what is or is not OK to do or say.
“If it’s a harassment issue, we would probably refer back to the Student Conduct Code,” Timm said. “If it doesn’t violate the Code of Conduct, we probably don’t have a harassment case.”
However, section 6 of the Student Conduct Code states that “violation of any published University policy, rule, regulation or presidential order” can also lead to student discipline. According to Creeley, this gives the policies more power than they should have.
“(The policies) could be deployed or cited in such a way that would restrict student speech,” he said. “They may also be deployed very carefully, and thus never restrict student speech, but we are worried about the possibility granted by the language to the administrators.”
Both Timm and Samarkos said they would be willing to work on improving the policies, should the need arise.
“Some of these (words) are lore and they’ve been in there for a very long time,” Timm said. “So I think if it’s a suggestion to remove it, we could certainly discuss it.”
Both Student Life & Leadership and Residential Education have worked with FIRE in the past to review and change policies. Samarkos said in an educational environment, balancing student protection with student rights is a learning experience, even for policymakers and enforcers.
“We’re always reviewing, looking, rewriting, updating and making sure that we are being appropriate,” she said. “That’s something that’s really important to us, because we always want to make sure we’re serving our students to the best of our abilities at all times.”