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 =