From: kadie@eff.org (Fwd:) Newsgroups: alt.comp.acad-freedom.news Subject: Re: [Fed. Register] U.S. policy on racial harassment Followup-To: alt.comp.acad-freedom.talk,alt.censorship Date: 13 Apr 1994 13:43:12 -0400 Organization: Electronic Frontier Foundation Lines: 225 Approved: kadie@eff.org Message-ID: <2ohavg$1s2@eff.org> [A repost - Carl] [Paraphrase: A critique of the the new U.S. Education Department guidelines on racial harassment: It all but ignores the First Amendment.] From: kadie@eff.org (Carl M. Kadie) Newsgroups: alt.comp.acad-freedom.talk,alt.censorship Subject: Re: [Fed. Register] U.S. policy on racial harassment Date: 12 Apr 1994 21:48:08 -0400 Message-ID: <2ofj0o$c8t@eff.org> Summary: A critique. The new U.S. Education Department guidelines on racial harassment all but ignore the First Amendment. >[Here are the new guidelines from the U.S. Education Deparment for >(among other things) when a university [or grade or high school -cmk] >can be help responsible for a student's harassment of a student. The full policy available on-line. See references. The guidelines's only references to the First Amendment and freedom of speech are these two footnotes: {1} This investigative guidance is directed [...] not at the content of speech. In cases in which verbal statements or other forms of expression are involved, consideration will be given to any implications of the First Amendment to the United States Constitution. In such cases, regional staff will consult with headquarters. {7} Of course, OCR cannot endorse or prescribe speech or conduct codes or other campus policies to the extent that they violate the First Amendment to the United States Constitution. It makes no reference to the federal district court decisions that that have consistently struck down the kind of overly broad and vague policies that this Education Department guidelines seem to implicitly advocate. Those court decisions include: _Doe v. University of Michigan_, 721 F. Supp. 852 (E.D. Mich. 1989) _UWM Post v. Board of Regents of University of Wisconsin_, 774 F. Supp. 1163 (E.D. Wis. 1991) _???? v. Central Michigan University_ (reported in the _Chronicle of Higher Education_, Jan. 12, 1994, p. A4 Why are there no Circuit court decisions? I think because school are not appealing the district-level decisions. Indeed, many are settling before even the district court can make a decision. According to the March 16, 1994 _Chronicle of Higher Education_, p. A17: "In January, the University of Houston settled a multi-million-dollar suit filed by a professor who had been accused of sexual harassment. Houston paid the tenured professor $200,000 for his resignation. [That article also lists several on going lawsuits.] According to UPI report on Sept. 8, 1992, "Conservative students at Stephen F. Austin University and school officials have apparently reached a settlement in a free speech dispute that stemmed from fliers the group posted a year ago." A fraternity at the U. of California at Riverside was banned for offensive T-shirts. They sued and the university settled. By the terms of the settlement the fraternity is is reinstated (but must comply with its national headquarter's sactions. University administrators have to take First Amendment senstivity classes. What would the Supreme Court say if it was every given a case? Well, in the _Rust v. Sullivan_ decision, the Supreme Court said: "Similarly, we have recognized that the university is a traditional sphere of free expression so fundamental to the functioning of our society that the Government's ability to control speech within that sphere by means of conditions attached to the expenditure of Government funds is restricted by the vagueness and overbreadth doctrines of the First Amendment, Keyishian v. Board of Regents, 385 U. S. 589, 603, 605-606 (1967)." The Education Department should learn a little about academic freedom and freedom of speech. - Carl ANNOTATED REFERENCES (All these documents are available on-line. Access information follows.) ================= law/racial-harassment.us ================= The new guidelines from the U.S. Education Deparment for (among other things) when a university can be help responsible for a student's harassment of a student. The guidelines were published in the Federal Register on March 10, 1994. ================= law/doe-v-u-of-michigan ================= * Expression -- Hate Speech -- Doe v. U of Michigan This is Doe v. University of Michigan. In this widely referenced decision, the district judge down struck the University's rules against discriminatory harassment because the rules were found to be too broad and too vague. ================= law/uwm-post-v-u-of-wisconsin ================= * Expression -- Hate Speech -- UWM Post v. U Of Wisconsin The full text of UWM POST v. U. of Wisconsin. This recent district court ruling goes into detail about the difference between protected offensive expression and illegal harassment. It even mentions email. It concludes: "The founding fathers of this nation produced a remarkable document in the Constitution but it was ratified only with the promise of the Bill of Rights. The First Amendment is central to our concept of freedom. The God-given "unalienable rights" that the infant nation rallied to in the Declaration of Independence can be preserved only if their application is rigorously analyzed. The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land and the only restriction the fighting words doctrine can abide is that based on the fear of violent reaction. Content-based prohibitions such as that in the UW Rule, however well intended, simply cannot survive the screening which our Constitution demands." ================= law/young-conservatives-v-sau ================= * Expression -- Offensive -- Young Conservatives v. SAU A UPI story that tells how Stephen F. Austin University originally banned a group's "sexist" flyers, but when challenged, the ban was lifted and a cash settlement was given to the students whose free-speech was violated by the ban. ================= law/uc-riverside ================= Paraphrase of a newspaper report: A fraternity at the U. of California at Riverside was banned for offensive T-shirts. They sued and the university settled. By the terms of the settlement the fraternity is is reinstated (but must comply with its national headquarter's sactions. University administrators have to take First Amendment senstivity classes. ================= law/jeffries,_leonard ================= * UPI article on the Leonard Jeffries case On May 18, 1993, a federal jury ordered the City University of New York to pay professor Leonard Jeffries $400,000 because the jury determined that the university fired Jefferies because of an antisemantic speech he gave. ================= academic/speech-codes.aaup ================= * Speech Codes (AAUP) On Freedom of Expression and Campus Speech Codes Expression - An official statement of the American Association of University Professors (AAUP) It says in part: "On a campus that is free and open, no idea can be banned or forbidden. No viewpoint or message may be deemed so hateful or disturbing that it may not be expressed." ================= ================= If you have gopher, you can browse the CAF archive with the command gopher gopher.eff.org These document(s) are also available by anonymous ftp (the preferred method) and by email. To get the file(s) via ftp, do an anonymous ftp to ftp.eff.org (192.77.172.4), and then: cd /pub/CAF/law get racial-harassment.us cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get uc-riverside cd /pub/CAF/law get jeffries,_leonard cd /pub/CAF/academic get speech-codes.aaup To get the file(s) by email, send email to ftpmail@decwrl.dec.com Include the line(s): connect ftp.eff.org cd /pub/CAF/law get racial-harassment.us cd /pub/CAF/law get doe-v-u-of-michigan cd /pub/CAF/law get uwm-post-v-u-of-wisconsin cd /pub/CAF/law get young-conservatives-v-sau cd /pub/CAF/law get uc-riverside cd /pub/CAF/law get jeffries,_leonard cd /pub/CAF/academic get speech-codes.aaup -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu = ================= end of repost ================== -- Carl Kadie -- I do not represent EFF; this is just me. =kadie@eff.org, kadie@cs.uiuc.edu =