Texas university’s harassment policy under fire

A national free speech association filed a lawsuit earlier this week challenging a University of Houston harassment policy it says punishes students for engaging in protected speech and deters them from expressing unpopular views.

Speech First filed a complaint in a federal court in Texas on Wednesday arguing three of its student members face unwarranted discipline at the school if they express unpopular conservative opinions. That includes their views on immigration, sexuality, affirmative action, and the participation of biological men in women’s sports. Speech First calls the policy unconstitutional viewpoint discrimination.

“These students want to engage in speech that is arguably covered by the university’s policy, but they credibly fear that the expression of their deeply held views will be considered ‘intimidating,’ ‘denigrating,’ ‘negative stereotyp[es],’ and the like,” the complaint states, citing language from the policy. “Rather than risk being reported, investigated, or sanctioned, they do not speak as freely as they otherwise would.”

The university adopted the harassment policy on Dec. 27, 2021. The rules define “harassment” as severe, pervasive, or persistent treatment that is “humiliating, abusive, or threatening conduct or behavior that denigrates or shows hostility or aversion toward an individual or group.” But Speech First argues the broad list of examples chills free speech. For example, the policy indicates “minor verbal and nonverbal slights, snubs, annoyances, insults, or isolated incidents including, but not limited to microaggressions” could constitute harassment.

According to Speech First, that violates a 1999 Supreme Court ruling, Davis v. Monroe County Board of Education. In Davis, the court concluded schools violate Title IX’s ban on sex-based discrimination if they are deliberately indifferent to sexual harassment by students. But it said the First Amendment imposed limitations: Harassment must be severe and pervasive enough to deny equal access to education.

The University of Houston on Thursday issued a statement, obtained by the Washington Examiner, that accuses Speech First of misconstruing its policy, pointing to language mirroring the Davis standard.

Academic freedom advocates argue speech codes can inhibit students from speaking out even in ways not covered by the rules. “Speech codes contribute to self-censorship, which is the enemy of real education everywhere,” said Jonathan Zimmerman, a history of education professor at the University of Pennsylvania. “To learn from each other, we need to speak our minds without fear. And broad restrictions on campus expression discourage us from doing that.”

A September 2020 survey of more than 20,000 American college students by the Foundation for Individual Rights in Education indicated 42 percent of students believe their university would punish them for making an offensive or controversial statement. A separate survey by the Heterodox Academy found that, among non-freshman college students, 45 percent said “sharing ideas and asking questions without fear of retaliation, even when those ideas are offensive to some people,” had become “more difficult” in the fall 2020 semester than previously.