A federal district judge has struck down a university hate-speech code, ruling that it violates students’ First Amendment rights. The decision called into question a number of efforts by colleges nationwide to penalize students who use racist, sexist, and homophobic slurs against others.
The speech code, adopted by the Board of Regents of the University of Wisconsin two years ago, barred slurs or epithets that were based on a person’s race, sex, religion, sexual orientation, disability, or ethnic origin. The code said students would be penalized if the slurs created a “hostile learning environment” for someone.
The American Civil Liberties Union filed suit on behalf of one of the university’s student newspapers, the UWM Post, and on behalf of several students who believed the code violated their constitutional right to free speech. Since adopting the code, the university has disciplined nine students for making derogatory remarks.
Several other institutions have enacted codes or issued statements in recent years to deal with a rise in violence and harassment directed at minority students, women, and homosexuals. Although they differ in some cases from the Wisconsin plan, they are essentially aimed at barring offensive speech or behavior. The institutions include Brown, Emory, Pennsylvania State, and Stanford Universities, and the Universities of California, Connecticut, Pennsylvania, and Texas.
Madison officials have not decided whether to appeal the judge’s ruling. But officials at other institutions said colleges with similar hate-speech policies may postpone reviewing them until the Supreme Court rules in its current term on a Minnesota law that penalizes “hate crimes.”
Madison officials argued that their speech code was defensible under the “fighting-words doctrine” established by the Supreme Court 49 years ago. In Chaplinsky v. New Hampshire, the Court ruled that fighting words -- those that by their very utterance tend to incite violence -- were not protected by the First Amendment.
Judge Robert W. Warren said Wisconsin’s code did not meet that test. “The rule goes beyond the present scope of the fighting-words doctrine and is likely to allow the rule to apply to many situations where a breach of the peace is unlikely to occur,” the judge wrote.
He added: “The problems of bigotry and discrimination sought to be addressed here are real and truly corrosive of the educational environment. But freedom of speech is almost absolute in our land. Content-based prohibitions such as that in the UW rule, however well intended, simply cannot survive the screening which our Constitution demands.”
University officials said the judge’s ruling meant they would have a more difficult time making the university a civil place. “They took a tool away from us that was useful in getting at the problem of harassment,” said Patricia Hodulik, legal counsel for the University of Wisconsin system.
Added James E. Sulton, special assistant to the president for minority affairs: “Everyone seems more concerned about the theoretical abridgment of First Amendment rights than about the real abridgment of rights based on racial harassment.”
Wisconsin’s code was approved as part of a plan to increase the number of minority students on the campus and to create greater awareness of their cultures. The “Design for Diversity” plan came in response to several highly publicized racial incidents at the university, including a fraternity “slave auction” in which pledges in black face performed skits parodying black entertainers.
The Wisconsin case was the second in which a federal district judge struck down a campus hate-speech code. In 1989, a judge barred a University of Michigan policy aimed at preventing discrimination or harassment of students. The judge said the code was too broad. Michigan’s policy prohibited speech that was directed at either an individual or at a group of people.
Officials at Wisconsin tried to avoid the legal problems that Michigan had encountered, by shaping a narrower policy that penalized only slurs and epithets directed at an individual. “We tried to create a policy with as many teeth in it as possible without bumping up against constitutional law,” said Mr. Sulton. “It’s frustrating after going though the gyrations of getting a rule that is fair and correct.”
Although the lawyer for the Wisconsin students said he understood the university’s predicament, he said students’ freedom of speech must be protected. “We’ve had two case rulings now, and in both cases the university was struck down,” said Jeffrey J. Kassel, a Madison lawyer who argued the case on behalf of the ACLU. “The courts have drawn the line -- students cannot be punished for things that they say.”
College officials elsewhere said they believed other institutions would hesitate to put anti-harassment codes in place now. “I don’t think we will see a lot of people putting forth these policies,” said Terrell Jones, deputy vice-provost at Pennsylvania State University. “What we can do is restricted. A student has the right to be a jerk.”
Pennsylvania State has adopted a statement that officials there believe may avoid challenges. Students who use slurs and epithets are punished only if they are found to have violated another section of the university’s code of conduct.
The University of Texas at Austin has a similar policy. Mark Yudof, dean of the School of Law at the University of Texas at Austin, said Wisconsin’s code was “a bad approach.” He said he agreed with the judge, and added: “There is no proof that exception to free speech has any currency in current law. There hasn’t been a case where fighting words have been upheld in 40 years.”
Others said universities could still write codes that are within constitutional parameters. The codes could cover only such offenses as the intentional infliction of emotional distress and speech that would insure that violence would occur. “But they would reach such a small amount of the problems that would occur that they would be ineffective,” said Elsa K. Cole, general legal counsel for the University of Michigan.
