Bill could affect harrasment policy
By Dave Watt
In an unusual alliance with the American Civil Liberties Union, Rep. Henry J. Hyde (R-IL) has introduced a bill in Congress which extends First Amendment protections on free speech to students in private universities that receive federal aid.
If passed, the language of the Collegiate Speech Protection Act of 1991 may affect MIT's harassment policy, as well as restrictions on racist, sexist and anti-homosexual speech at universities nationwide.
The ACLU has endorsed Hyde's bill, which has been referred to a subcommittee of the House Judiciary Committee. Hearings on the bill will be scheduled "hopefully by the end of the year," said George Fishman, legislative council for Hyde.
The bill would permit students to obtain injunctions against enforcement of campus disciplinary statutes in the courts, and sue for the cost of attorneys' fees.
Bill would extend free speech
rights to private schools
If the Collegiate Speech Protection Act is passed, MIT's sexual harassment policy might have to be reworded. According to Fishman, MIT's policy is similar to a University of Michigan harassment policy, which was found unconstitutional by a US district court in 1988.
The court ruled that public universities may not "establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages sought to be conveyed." It added that the University of Michigan could not "proscribe speech simply because it was found to be offensive, even gravely so, by large numbers of people."
MIT's sexual harassment policy defines harassment as "any conduct, verbal or physical, on or off campus, which has the intent or effect of unreasonably interfering with an individual's or group's educational, work or living environment."
Philosophy Professor Judith J. Thomson, who has spoken out against the MIT sexual harassment policy, said bills like Hyde's should be unnecessary. "We shouldn't have any policies that would be illegal in a public university," she said. "I'm sorry if people get hurt feelings, but universities ought to be a place where speech is especially securely protected."
Thomson suggested that she would only support a narrowly drawn policy which constrains "speech that involves abusive epithets directed at individuals with the intent to cause distress," she said. Stanford University has adopted a free speech policy based on the three conditions Thomson described.
Representatives from Hyde's office in Washington said the bill would not protect sexual harassment as free speech. "Sexual and racial harassment are not protected by the First Amendment," said a spokesman.
Although Associate Provost Samuel J. Keyser said he supported the principle of Hyde's bill, he noted that speech on campuses must be viewed in a broader context.
"It's very easy to focus on legal aspects of this issue, because that's the easy part of it," Keyser said. "But focusing on that and not focusing on the consequences of free speech on other people is like a form of denial."
Hyde, in a press release, said the bill is intended to stem a rising tide of intolerance in university free speech policies. "The demands of political correctness are casting a pall of intolerance over American universities," Hyde said.
"Students must be able to express whatever ideas they choose, even if others are offended by those expressions," said Nadine Strossen, president of the ACLU, at a news conference in New York City Tuesday. "This bill, if enacted, would help ensure vital protection," she added.
"This bill was not introduced to allow extremists to speak. That is a side effect of the bill," a Hyde spokesman said.
Hyde's spokesman suggested that universities use restrictive speech policies only to avoid bad publicity.
"College administrators are rightfully concerned about controlling their campuses," he said. "But oftentimes they are trying to control negative incidents that might affect enrollment or fundraising. These disciplinary codes are part of a desire on administrators' part to squelch embarrassing or negative incidents."
The text of Hyde's bill, which amends the Civil Rights Act of 1964, states "a postsecondary educational institution . . . shall not make or enforce any rule subjecting any student to disciplinary sanctions solely on the basis of conduct that is speech or other communication protected from governmental restriction by [the First Amendment]."