The eagle-eyed folks at FIRE noticed a major change in Penn State’s speech policies hours before that change became public. With policy changes that came into effect on Friday, Penn State transformed itself from a university with one of the worst speech codes of any major public university to a new regime that properly protects students from true harassment without closing the marketplace of ideas.
On February 21, Penn State student A.J. Fluehr filed suit against the university, challenging several Penn State policies, including its speech code. (Full disclosure: the Alliance Defense Fund represents A.J., and I am lead counsel in the case). This code, among other things, prohibited ”unwelcome banter, teasing, or jokes” that were “derogatory” or depicted “members of a protected class in a stereotypical and demeaning manner.” It also prohibited any “attitude, feeling, or belief” which caused a person to “show contempt” for other individuals on the basis of, among other things, “political belief.” (In other words, watch what you say about Ward Churchill on Penn State’s campus!) Shortly after A.J. filed suit (and after Penn State’s spokesman denied the university had a speech code), these policies were used to censor Penn State student Josh Stulman’s art exhibit highlighting the culture of terrorism in Palestinian territories.
The new policies still contain much rhetoric about the university’s commitment to diversity and tolerance, but the actionable portions of the policies are quite different. No longer can a student be punished simply because their speech is subjectively offensive to another student. No longer can a point of view be banned (as in Stulman’s case) simply because it takes an “intolerant” position on the issues. For speech to be punished, it has to be harassing (as that word is properly defined). To constitute harassment, the “verbal conduct” must be “sufficiently severe or pervasive so as to substantially interfere with the individual’s employment, education or access to University programs, activities and opportunities.” Moreover, the judgment of whether the conduct in question violates the policy comes from the perspective of the “reasonable person.” In other words, the test is objective, not subjective.
Penn State should be applauded for making this change, and I hope it can be a model for other schools (cough, cough, Georgia Tech. When students like A.J. have the courage to challenge speech codes, they are often accused of wanting to “expose students to harassment.” Nothing could be further from the truth. It is possible to preserve free exchange of ideas while protecting students from actual harassment, and Penn State’s policies show the way.