When Campus Hate-Speech Rules Go Further Than the Law

It’s stunning how quickly the story in Columbia, Missouri, has turned from a debate about racism in the university community to a story about free speech—and attempts to limit it.

Most prominently, the video of a crowd intimidating a photographer—a student journalist—and attempting to block him from doing his job went viral. Tim Tai, the photographer, asserted his First Amendment rights with impressive poise and calm, given the pressure on him. (On Tuesday, the faculty of the School of Journalism were voting on whether to strip Melissa Click—an assistant professor of communication shown calling for “muscle” to push a reporter out—of her “courtesy” appointment in journalism.) Suddenly, the focus of the University of Missouri story has become about free speech.

That’s even more true after an email Tuesday from university police, circulated by many people on Twitter, about “Reporting Hateful and/or Hurtful Speech.”

The email seems practically tailor-made to upset free-speech advocates—particularly the closing lines: “While cases of hurtful speech are not crimes, if the individual(s) identified are students, MU’s Office of Student Conduct can take disciplinary action.”

The email is, of course, correct: Hateful and hurtful speech are not crimes. It is also correct that many forms of hurtful or hateful speech are potentially sanctionable under the university’s disciplinary policy. For example, the code bans harassment:

Harassment in violation of the University’s anti-discrimination policies, is unwelcome verbal or physical conduct, on the basis of actual or perceived membership in a protected class as defined in the University’s anti-discrimination policies, that creates a hostile environment by being sufficiently severe or pervasive and objectively offensive that it interferes with, limits or denies the ability of an individual to participate in or benefit from educational programs or activities or employment access, benefits or opportunities.

It also bars “Threatening or Intimidating Behaviors, defined as written or verbal conduct that causes a reasonable expectation of injury to the health or safety of any person or damage to any property or implied threats or acts that cause a reasonable fear of harm in another.” These standards are necessarily flexible and ambiguous, but that also means they’re dangerously vague. Some things are clearly threatening or bullying, but many are less clear. In an environment where, as the video of Tim Tai shows, some members of the university community feel their First Amendment rights are being trampled simply by Tai’s presence exercising his own, who knows what might be characterized as intimidation?

The gap here between what the law proscribes and what the university code of conduct does is not unusual, and students who fall in the middle have taken the conflict to the courts. In many cases, schools restrict what students can do beyond what the law does, or institute review processes far different from the criminal-justice system. Some of these are not controversial: No one objects when a university penalizes plagiarism. But many are plenty controversial—most notably sexual assault and sexual harassment. On many campuses, the burden of proof for sexual misconduct is lower than the necessity that a crime be proved beyond a reasonable doubt—for example, asking only for “the preponderance of evidence.” In some cases, accused students are not entitled to an attorney, or to confront their accusers.

Such policies have often been instituted in response to concerns that universities have not taken victims of sexual assault and harassment seriously enough. Those concerns are often more than evident. But even observers who objected to the old process have expressed reservations. Last winter, law professors at Harvard and the University of Pennsylvania objected publicly to the processes at their respective universities.

The email at Mizzou is analogous. The university’s administration has been criticized for not reacting strongly enough to incidents of racism on campus. In his resignation speech Monday, former university President Tim Wolfe more or less confirmed that accusation. In its haste to reverse that injustice, free-speech advocates argue, Mizzou administrators risk overcorrection that similarly perpetuates injustice—by not just including recourse for students who feel threatened, but affirmatively seeking to encourage reports of hurtful speech.

Mizzou, like all universities, has a legitimate interest in fostering a campus climate where students feel safe and included. (For an eloquent description of how it has fallen short, read this essay by Juana Summers.) Yet Mizzou, like all universities, also has a legitimate interest in encouraging an open and robust discourse. The university hasn’t yet found a good way to balance those interests.