FIRE: IU Southeast Speech Code is "Laughably Unconstitutional"

The Foundation for Individual Rights in Education (FIRE) posted an entry on their blog about the IU Southeast’s illegal speech code. The blog, called “The Torch” is often entertaining and informative, but this post will prove to be a favorite.

 

June 18, 2008

http://www.thefire.org/index.php/article/9433.html

University Nixes Naughty Faxes

 By Samantha Harris

Every day, I catalog the myriad ways in which universities restrict their students’ free speech rights. As someone who believes deeply in individual liberties, this work can get depressing. Every so often, however, I come across a speech code so ludicrous that it introduces a little levity into my otherwise serious work. Today, I found just such a policy at Indiana University Southeast. IU Southeast maintains a laundry list of behaviors “related to sexual harassment,” including “suggestive or insulting sounds,” “sexist jokes or humor,” and “gender specific insults or comments.” All of these restrictions are constitutionally suspect, since most speech falling into those categories is entirely constitutionally protected. But it was this example that really caught my eye: “faxes sexual in nature.” Really? Are naughty faxes a common enough problem to warrant being added to a list of supposedly harassing behaviors? Unless something very strange is afoot at IU Southeast, my guess would be no. And yet, a consensus of supposedly reasonable administrators decided to include this in the policy. I would love to have been present for the discussion at that meeting. (Just like I would love to have been at the meeting at UW-Oshkosh where they decided to ban “staring at a man’s derriere”…I’ve always wanted to know, did they run through a list of synonyms for rear end before settling on “derriere”? Was a vote taken?)

I often refer to university speech codes as “laughably unconstitutional,” but these policies take that phrase to a whole new level.

 

The speech code is here http://www.ius.edu/eqdiv/sexualharassresource.cfm

I took a screenshot of the page because if IU Southeast has a lick of sense they would pull this page down asap and abandon the policy. Of course I would not be surprised if they just took down the page and left the policy intact.

 

Rediculous parts of this policy include:

 

Sexist jokes or humor (Vagina Monologues?)

Suggestive or insulting Sounds (Vagina Monologues?)

Gender specific insults or comments (Vagina Monologues?)

Unwanted sexual invitations, propositions, or pressure

Leering, ogling, and obscene gestures (Vagina Monologues?)

E-mails, faxes sexual in nature

Circulating sexually explicit materials (Vagina Monologues?)

You can be certain that the Vagina Monologues could not have a chance to escape the letter of this policy, but like on so many university campuses, such policies are selectively interpreted and misapplied to suit the situational ethics, ideology and bias of those either enforcing the policy or making the charge.

Gender Specific Comments - Former Harvard President Larry Summers was asked why it was that he thought that women are represented in fewer numbers in the sciences as compared to other areas of academics.  After talking about discrimination he said that perhaps women just might be interested in areas other than science.  He was hounded out of office by a politically correct witch hunt. NO one could answer the question posed to President Summers without violating this policy.

Unwanted sexual invitations - asking someone on a date – asking someone for a hug or a kiss – is banned by this policy or at very minimum puts you totally at the mercy of someone else.
 
Leering - If a couple is in a relationship they often make certain glances or stare at each other – they have just created a hostile environment and are sexually harassing people.

Emails, faxes, suggestive sounds etc etc - If someone (read the politically correct protected group or victim) is offended under this policy then the other party is guilty. None of these meet the standard as being actionable under the legal tests established in case law. Case law makes it clear that offensive speech and actions are constitutionally protected and it is not until such actions rise to the level of the legal definitions of genuine sexual harassment or is so disruptive that it genuinely interferes with the university mission to educate does it become actionable. Universities can limit vulgar expression to a degree (prurient nudity, pornographic displays, etc).

There is no way that IU Southeast’s policy can be enforced equitably or legally. Therefore I may have to take a trip to IU Southeast and ask those tasked with enforcing this ridiculous policy out on a date, and dare them to enforce it as I have a sneaking suspicion that FIRE’s legal network would find it most entertaining and gratifying to have this speech code thrown out by the court.

A very special Hat Tip to FIRE’s Samantha Harris for knocking this one out of the park.

Chuck Norton

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