University Senate An Introduction Mike Poterala Vice President for Legal Affairs and General Counsel Presentation to the University Senate May 6, 2015

University Senate 1 st Amendment to the U.S. Constitution “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

University Senate Conduct may be regulated. 1. Discrimination 2. Threats 3. Intimidation/harassment 4. Inciting imminent lawless action (fighting words) 5. Libel and slander 6. Time, place and manner

University Senate Pure speech may rarely be regulated. Attempts to regulate the content of speech are almost always unconstitutional.

University Senate Doe v Univ. of Michigan (1989) Racist acts occurred on campus Legislature threatened to cut funding unless action was taken Michigan adopted an anti-racial harassment policy

University Senate Doe v Univ. of Michigan (1989) “The Policy prohibited individuals, under the penalty of sanctions, from ‘stigmatizing or victimizing’ individuals or groups on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.”

University Senate Doe v Univ. of Michigan (1989) “However laudable or appropriate an effort this may have been, the Court found that the Policy swept within its scope a significant amount of ‘verbal conduct’ or ‘verbal behavior’ which is unquestionably protected speech under the First Amendment.”

University Senate Doe v Univ. of Michigan (1989) The Court granted plaintiff John Doe's request for a permanent injunction as to those parts of the Policy restricting speech activity, but denied the injunction as to the Policy's regulation of physical conduct.

University Senate Doe v Univ. of Michigan (1989) “What the University could not do, however, was establish an anti-discrimination policy which had the effect of prohibiting certain speech because it disagreed with ideas or messages sought to be conveyed.”

University Senate Doe v Univ. of Michigan (1989) “If there is any star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 87 L. Ed. 1628, 63 S. Ct (1943)

University Senate Doe v Univ. of Michigan (1989) “It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” Street v. New York, 394 U.S. 576, 592, 22 L. Ed. 2d 572, 89 S. Ct (1969)

University Senate Practical suggestions Respond with “more speech” when offensive speech occurs, articulating values of tolerance and civility. Use content-neutral policies (time, place and manner restrictions). Act swiftly in response to acts of violence and intimidation.

University Senate Practical suggestions Insure rules have a direct nexus to some impact on the educational environment. Consider curricular and extracurricular opportunities to discuss difficult issues. Alger and Thro, “Campus “Speech Codes” and Institutional Responses to “Offensive” Speech on Campus,” NACUA white paper, April, 7, 2006

University Senate University of Chicago, Report of the Committee on Freedom of Expression, January 6, 2015 “In a word, the University’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the University community to be offensive, unwise, immoral, or wrong-headed.” Available here.here.

University Senate Questions?