Universities catch criticism for harassment policies

By Tia Rinehart

Certain policies at SIU could potentially endanger the first amendment rights of students, according to a watchdog website.

Thefire.org, the website of the Foundation for Individual Rights in Education, shows SIU’s 2013-2014 non-discrimination and non-harassment policies, as well as its sexual harassment policy, are not first amendment friendly.

Samantha Harris, thefire.org director of policy research, said the university’s policy on non-discrimination and non-harassment has been flagged as red because of its potential be misinterpreted through poor political speech. The site rates policies by giving each policy a red light for not protecting first amendment rights, a yellow light for partially protecting first amendment rights and a green light for fully protecting first amendment rights.


“It prohibits any, what it calls, ‘demeaning depictions’ based on race, color, national origin, religion, sex,” she said. “And because that term is so broad and it’s not a term that has a legal definition, it could apply even to a lot of speech on political and social issues that someone finds demeaning or offensive.”

Harris said SIU’s sexual harassment policy is flagged as yellow on the site because it defines sexual harassment as conduct that has a purpose or effect of substantially interfering with the student’s academic involvement or creating an intimidating, hostile or offensive academic environment.

“It sort of approximates the legal definition of sexual harassment but it leaves out some pretty key language that protects student’s free speech rights,” she said.

For conduct to be unprotected sexual harassment it must be severe, pervasive and objectively offensive, Harris said. The often used reasonable person standard is the standard to which actions are justified by considering the average person’s reaction to the conduct, she said.

“The objectively offensive point is very important because it protects students and faculty from being found responsible for harassment based on, you know, the feelings of the most sensitive members of the community,” she said. “This kind of reasonable persons standard is used throughout the law in different areas, not just sexual harassment.”

Harris said schools often try to define sexual harassment or other policies in their own way, different from the Supreme Court’s definition, leading to first amendment unfriendly policies.

“A lot of times – and SIU does this to some extent – (schools) try to come up with sort of examples of sexual harassment and those can be troubling,” she said. “’Any unwanted, inappropriate behavior that’s targeted to a person because of their gender or sexual orientation.’ That’s an example that’s in SIU’s policy but inappropriate is not defined in any way.”


Robert Corn-Revere, an American first amendment attorney, said it is common for policies to be enforced or worded in a way so broad they violate the first amendment.

“As a matter of fact, I would say most campuses, according to the Foundation for Individual Rights and Education, have policies that have significant constitutional problems,” he said. “Policies can either be too vague or they can be worded too broadly.” 

Corn-Revere said there are ways colleges and universities can improve their policies.

“(Colleges) need to have competent legal counsel take a look at their policies to look at the specific wording to see if a reasonable person – an average student – would be able to understand what’s acceptable and what’s not acceptable based on the policy,” he said.

Associate chancellor for institutional diversity Linda McCabe Smith said SIU’s policies are created with legal counsel.

“I can’t speak for other universities, but typically (policies) are,” she said. “Everything is vetted via legal counsel. Policies and procedures are vetted, particular policies, are vetted via legal counsel.”

Smith said she has heard the university’s policies questioned before. However, SIU does make an effort to ensure laws are followed, she said.

“We do our best to make sure that we follow the regulations of the law, make sure that due process is given to everyone on campus,” she said. “We try to address all issues.”

Harris said it is common for administrations to say free speech is protected through practice, even if their policies are not in line.

“Even if a particular administration is committed to protecting free speech, if you have a written policy that is not protective of free speech it always opens the door for censorship and for arbitrary enforcement down the road,” she said. “It’s really important that both a university be committed to free speech in practice and also on paper.”

Tia Rinehart can be reached at [email protected], @TiaRinehart_DE or 536-3311 ext. 254.