The problem, unfortunately, is that in this case the relatively unimportant institution may be another indicator of the totalitarian drift of American higher education as a whole.
Three University of Central Florida students asked a court to declare the school’s discriminatory-harassment policy unconstitutional. All three wanted to express views against abortion, affirmative action and illegal immigration, as well as their opinions on LGBTQ issues, but said that they dared not to do so because of the university’s oppressive speech and conduct rules. After the lower court refused to consider the case on procedural grounds, the 11th Circuit Court of Appeals struck down the speech restrictions.
A junior high school student relatively familiar with the First Amendment could have figured this out. What is terrifying is that such a censorious, viewpoint-restricting piece of anti-democratic poison could have been concocted and enforced on any American campus. The University of Central Florida’s “discriminatory harassment” policy states,
Discriminatory harassment consists of verbal, physical, electronic or other conduct based upon an individual’s race, color, ethnicity, national origin, religion, non-religion, age, genetic information, sex (including pregnancy and parental status, gender identity or expression, or sexual orientation), marital status, physical or mental disability (including learning disabilities, intellectual disabilities, and past or present history of mental illness), political affiliations, veteran’s status (as protected under the Vietnam Era Veterans’ Readjustment Assistant Act), or membership in other protected classes set forth in state or federal law that interferes with that individual’s educational or employment opportunities, participation in a university program or activity, or receipt of legitimately-requested services meeting the description of either Hostile Environment Harassment or Quid Pro Quo Harassment, as defined [below]. Discriminatory harassment may take many forms, including verbal acts, name-calling, graphic or written statements (via the use of cell phones or the Internet), or other conduct that may be humiliating or physically threatening.
The prohibited conduct is then defined as…
Discriminatory harassment that is so severe or pervasive that it unreasonably interferes with, limits, deprives, or alters the terms or conditions of education (e.g., admission, academic standing, grades, assignment); employment (e.g., hiring, advancement, assignment); or participation in a university program or activity (e.g., campus housing), when viewed from both a subjective and objective perspective.
Moreover, the policy says that
[i]n evaluating whether a hostile environment exists, the university will consider the totality of known circumstances, including, but not limited to” the following factors:The frequency, nature and severity of the conduct; Whether the conduct was physically threatening;The effect of the conduct on the complainant’s mental or emotional state; Whether the conduct was directed at more than one person;Whether the conduct arose in the context of other discriminatory conduct or other misconduct; Whether the conduct unreasonably interfered with the complainant’s educational or work performance and/or university programs or activities; Whether the conduct implicates concerns related to academic freedom or protected speech.
In addition, the policy’s definition of “Hostile Environment Harassment” goes on to hold…
(1) that “[a] hostile environment can be created by pervasive conduct or by a single or isolated incident, if sufficiently severe,” (2) that “[t]he more severe the conduct, the less need there is to show a repetitive series of incidents to prove a hostile environment, particularly if the conduct is physical,” and (3) that “an isolated incident, unless sufficiently serious, does not amount to Hostile Environment Harassment.”
UCF’s Student Handbook also states that “[s]tudents are prohibited” not only from engaging in the prohibited conduct themselves, but also from “[c]ondoning or encouraging acts of harmful behavior as defined [in the discriminatory-harassment policy] or failing to intervene during an act of harmful behavior while it is occurring.” …
The policy also created a “Just Knights Response Team” to provide assistance to those who have witnessed a hate-related or bias-related incident.
The Court concluded,
Nowhere is free speech more important than in our leading institutions of higher learning. Colleges and universities serve as the founts of—and the testing grounds for—new ideas. Their chief mission is to equip students to examine arguments critically and, perhaps even more importantly, to prepare young citizens to participate in the civic and political life of our democratic republic. It’s hardly surprising, then, that the Supreme Court has “long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought associated with the university environment, universities occupy a special niche in our constitutional tradition.” Accordingly, it is imperative that colleges and universities toe the constitutional line when monitoring, supervising, and regulating student expression. Despite what we presume to be the very best of intentions, it seems to us substantially likely that the University of Central Florida crossed that line here….
Ya think? Never mind “Don’t say gay,” this policy is a “Don’t say anything or else” rule. Eleventh Circuit Judge Stanley Marcus’s concurrence in Speech First, Inc. v. Cartwright was more pointed:
History provides us with ample warning of those times and places when colleges and universities have stopped pursuing truth and have instead turned themselves into cathedrals for the worship of certain dogma.
By depriving itself of academic institutions that pursue truth over any other concern, a society risks falling into the abyss of ignorance. Humans are not smart enough to have ideas that lie beyond challenge and debate. A discriminatory-harassment policy that assumes the most popular idea or the idea that least “interferes with, limits, deprives, or alters the terms or conditions of education” is the correct one is plainly at odds with the First Amendment and our notion of free speech.
The University’s discriminatory-harassment policy touches on every conceivable topic that may come up on a college campus. Religion, political affiliation, ethnicity, national origin, age, gender identity or expression, and genetic information are just a select few targeted by the policy. The specter of punishment for expressing unorthodox views on these topics stifles rigorous intellectual debate. And the harm is not limited to professors and students while they are on campus. Our future civic and scientific leaders surely will take these values with them after graduation.
A university that has placed its highest premium on the protection of feelings or safe intellectual space has abandoned its core mission. The protection of feelings or the creation of safe space rightly might be the foremost goal in some settings, like at a family dinner, but it is not right for a university. Its unambiguous mission must remain the pursuit of truth. John Stuart Mill put it best in his classic work, On Liberty:
The peculiar evil of silencing the expression of an opinion is that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth produced by its collision with error.
A university that turns itself into an asylum from controversy has ceased to be a university; it has just become an asylum.
What is notable is that this isn’t the first time this awful school has appeared on the Ethics Alarms radar. Earlier, there were EA posts about a despicable student, the school’s unethical treatment of a professor, and a cheating scandal. The university’s administrators and leadership should be sacked and shamed, of course, but it isn’t enough. This is a bad university, and, like an academic contagion, needs to wiped off the face of the earth in the interests of education, ethics, and American society.
Pointer: ABA Journal