This weekend, Whittier College — my alma mater — will mark its annual homecoming, bringing together students, alumni, professors, administrators, and trustees to reflect on and celebrate our gratitude for having been molded by a community which celebrates diversity of perspectives and opinions. This century-long heritage survives, a product of Whittier’s Quaker roots — a community which made its decisions by consensus, incorporating by principle the concerns of dissenters. Richard Nixon stood up to Whittier’s socially conservative administration, relying on reasoned argument to successfully convince administrators that, however morally uncomfortable they were with the prospect of on-campus dances, they were preferable to the dangers students faced when they sought out social events in the speakeasies of Los Angeles.
This tradition of protecting speech continues in spite of Whittier’s policies, which reflect neither the reality of Whittier’s traditions, its promises, or the First Amendment. Given that it’s Free Speech Week, it’s time to revisit Whittier’s speech rules — again.
Whittier’s Commitment — and Obligation — to Respect Student Speech
“First Amendment? Horsefeathers! Whittier is a private college. The First Amendment doesn’t apply.”
That’s half right. Whittier College, meet the “Leonard Law.” Leonard Law, Whittier. Oh, you’ve met before?
California’s Leonard Law extends a statutory right to free speech (equivalent to that of the First Amendment) to students at private colleges, with the express goal of ensuring “that a student shall have the same right to exercise his or her right to free speech on campus as he or she enjoys when off campus.” The law provides, in pertinent part:
No [private college] shall make or enforce a rule subjecting a student to disciplinary sanctions solely on the basis of conduct that is speech or other communication that, when engaged in outside the campus or facility of a [private college], is protected from governmental restriction by the First Amendment [or the California Constitution.]
While not without significant faults, the Leonard Law has been used to strike down Stanford’s speech code. That was almost twenty years ago, though time has not seen diminished attempts by colleges to make well-intentioned rules that would make everyone be nice.
Even without the Leonard Law, Whittier promises to protect student speech. ”Whittier College is a private institution fully committed to the ideals of academic freedom, freedom of expression, and cultural diversity.” (pdf, p58). The Student Handbook promises (pdf, p65) that “Whittier College respects the free speech rights of student organizations to peaceable [sic] assemble to discuss different philosophies, ideals, positions and opinions.” It also recognizes that student academic work is protected by students’ right to free expression and academic freedom (pdf, p25). Policies regarding organizations remark (pdf, p1) that “students have the right to congregate and associate on campus” and even cite the Leonard Law (pdf, p9).
This is commendable. College is where we learn that the world is not utopian, whether through a professor’s lecture or a colleague’s petty insults or crude words. We discover that we can change the world, but that we must do so by engaging it: by research and hard work, or by meeting those petty insults with a better insult (or by ignoring idiots). When it comes to speech, we’re forced to confront the truth that — in the real world — there can be no rules that we can use to shut degenerates up, even that speech which we all might find uncomfortable, caustic, patently offensive, absurd, or abusive.
These promises are undermined by Whittier’s own speech rules, which rival others for their ridiculous overbredth. I submit that some of what follows is finicky and provided only to make some cheap jokes, but much of it concerns policies which are breathtakingly broad and highly subjective. This is not strictly a legal analysis, but an attempt to raise serious questions about Whittier’s adherence to its traditions, its promises — and, yes, the law.
Whittier’s Speech Codes
Whittier’s speech codes, as described more in depth below, run the gamut from mandating that certain speech not be in “poor taste”, prohibiting hurtful Facebook or blog posts, raising the spectre of discipline for discussing politics or religion on the internet, and proscribing offensive language describing ambiguous, unnamed “groups” of people.
The “Publicity Policy” (pdf, pp 63-65) is unclear, failing to define what constitutes “publicity” :is it just promotional material from organizations, or does it apply to anything written and distributed? The policy notes that it applies to “handbills and literature” and there is a separate section of the Handbook dealing with commercial solicitation (pdf, p73-74), so it’s fairly clear that this section applies to more than just commercial advertisements. Nevertheless, it invites censorship of individuals and groups alike, and is offensive to speech rights when applied to either.
But that’s not how it starts. It starts by noting that it was designed, in part:
To protect freedom of expression while honoring the College Policy on Nondiscrimination;
This raises the first of many red flags. A policy cannot simultaneously purport to protect free expression while taking it away. Honoring a policy on nondiscrimination means removing rules which might prevent or deter caustic but cathartic response to caustic, offensive speech. That doesn’t mean it can’t proscribe harmful conduct, but statements like this make free speech advocates wary.
It gets worse.
All emails/advertisement must be in good taste and non-libelous, as decided by the Director of LEAP.
Even assuming this applies only to commercial advertisement, it places total authority to determine what can be distributed in the hands of one administrator, and leaves it to her or his sound discretion to determine whether or not the advertisement is in “good taste.” There is no taste exception to the First Amendment, not even for commercial speech. Misleading or false advertisement can be limited, but not just that which one person perceives to be in ‘poor taste.’
The Organization and Programming Policy (pdf, pp2-3) notes, similarly, that student promotions must first be reviewed by an administrator and that:
Promotions may not have images or text that is derogatory, defamatory, or lewd. [...] Photographs used for student media may not violate the Harassment Policy, be derogatory or be defamatory.
This is nonsense. Derogatory speech is protected, even in the context of high schools. Lewd speech is protected, both because this is a college (and not high school) context and because the Leonard Law protects speech if it is protected outside the campus (See, e.g., Morse v. Frederick (“Had Fraser delivered the same [lewd] speech in a public forum outside the [high] school context, he would have been protected.”).
The handbook reflects this (pdf, pp64-65):
Language and graphics contained in all publicity must uphold the policies and standards of community for Whittier College. The Whittier College Harassment Policy states that “Harassment may take many forms, including: visual conduct such as derogatory posters, cartoons, calendars, drawings in public places, staring at someone’s anatomy, leering, or gestures” (page 108-109 of the Student Handbook). Harassment is defined as “Physical abuse, verbal abuse, threats, intimidation, harassment, coercion and/or other conduct which threatens or endangers the health or safety of any person.” For example, publicity may not contain derogatory images of human body parts or nudity, racial slurs, violent images or language against individuals or groups, or sexually explicit innuendoes [sic] that are commonly viewed to be in poor taste.
First, note that harassment is defined as, among other things, harassment. Of course, many state statutes use the same circular definition. However, given the tendency of offended persons to describe anything they dislike as ‘harassment’ — oftentimes decrying words not directed at them but merely about them as ‘harassment’ — this is worrying. The concept of ‘harassment’ is not well understood when applied to speech, and this policy marries speech and harassment. Were it limited to “conduct which threatens or endangers the health or safety of any person,” the policy might be sound — but the “example” provided is one of pure, protected speech.
Second, again with the “poor taste” exception. Under this rule, the Richard M. Nixon Republican Club would be prohibited from distributing flyers promoting an event discussing terrorism if they included photos of the World Trade Center under assault, nor could the College Democrats promote a similar event by depicting the death of Osama bin Laden. Similarly, a group opposed to gay marriage could be denied its right to distribute flyers in favor of whatever monstrosity follows Proposition 8 (oops, sorry — I’m using language against a group). Imagine, perhaps, an anti-abortion group using pictures of dismembered fetuses on their flyers. The power of their message draws upon the offensive nature of the image. We might not like it, but our offense at what we find to be in poor taste is not a reason to silence it, and our propensity for offense arising from another’s poor taste is every reason to discontinue this rule, posthaste.
“Do you really think the College would censor those?” That’s a clown question, bro. Even if we trust the good judgment of current administrators not to employ these rules in questionable ways, there is no guarantee that future administrators will be as trustworthy, just as past administrators have proven their infidelity to the principles of free speech — more on this later.
Student Organizations and “Social Media”
The “Social Media Policy’ (pdf, p64) starts by encouraging student organizations to use it to “raise awareness on important issues by Whittier College student organization and clubs.” But we wouldn’t want feelings to get hurt, so…
Organizations or clubs can be held liable for commentary that is considered defamatory, obscene or libelous by any offended party.
On one hand, this is true: someone who is offended could sue and, assuming they survive the rigors of California’s anti-SLAPP law, win. But this section is unclear: who is holding them liable: the courts or the College? If the latter, that’s an absurd proposition: it suggests that if someone, somewhere, thinks something you’ve said is “defamatory [...] or libelous” (how redundant), that’s a basis for punishing it. Let’s give Whittier the benefit of the doubt and hope that this only serves as a reminder that censorious people can try to use the courts to redress their butthurt (and, on rare occasion, actual damage).
The next one is far more worrying:
Organizations or clubs cannot use harassing, threatening, discriminating or disparaging comments, pictures or art work.
Add the requirement that, under penalty of individual sanctions, organizations must
Always represent Whittier College in a positive manner (pdf, pp10-11)
and this means that were this very post made under the auspices of one of Whittier’s organizations, that organization could be subject to discipline. I am, after all, (lovingly) disparaging Whittier. Similarly, a gay rights organization could be disciplined for disparaging or discriminating against members of an organization it views contemptuously — or a group committed to ‘traditional’ marriage punished for disparaging homosexuals.
Moreover, were this rule applied to embarrassing or immature speech by a student organization, its premise is faulty. ”The proposition that schools do not endorse everything they fail to censor is not complicated.” (Westside Board of Education v. Mergens, 496 U.S. 251 (1990)). Just because a student organization is recognized doesn’t mean it’s endorsed. If Whittier finds the speech or acts of a student unbecoming, it is free to engage in the same remedy afforded to everyone else: more speech. It can criticize, condemn, or even endorse student speech. It must, at a minimum, respect student freedoms — it doesn’t have to go and name a building after questionable characters. (Cheap shot, I know.)
Next, Whittier College gets in on the latest craze in speech codes: prohibiting cyber-bullying. Hilariously, the document was apparently copy-pasted from policies employed by other schools (Whittier’s version refers to the “educational process of the School District“). It’s the policy many public schools employ. Well, middle schools. That’s right, Whittier’s approach to cyberbullying is to treat students like they’re twelve years old — and the policy was evidently written by someone of similar age, then transcribed from its Crayon origins:
Cyber bullying includes, but is not limited to, the following misuses of technology: harassing, teasing, intimidating, threatening, or terrorizing another student, faculty or staff member by way of any technological tool, such as sending or posting inappropriate or derogatory email messages, instant messages, text messages, digital pictures or images, or website postings (including blogs) which has the effect of:
- Physically, emotionally or mentally harming a student;
The “Guidelines on Electronic Social Networking” (pdf, pp54-55) also warns, ominously:
The College reserves the right to discipline students for acts of misconduct wherever they occur. While staff and faculty do not “police” online social networks for possible violations, staff are obligated to answer all complaints and reports of
alleged misconduct whether on campus, off campus, or online. [...]
Posting anonymous comments about other people which are incorrect, false or hurtful, or photos that are misleading or damaging, is not only unethical but also illegal.
Please make the hurt stop.
Under these policies, this post might be cyber-bullying if an administrator is embarrassed or hurt by it. The drafting is poor: first it references students, faculty, and staff, but limits application if a student is hurt. How a post about a student teasing a staff member could emotionally harm another student is beyond me. As Ken White points out to me on Twitter, “it’s not juts censorious. It’s incompetently drafted.” [This post has been updated to reflect this point.]
Nevertheless, if a student posts on Facebook funny pictures mocking another student, they’ve violated this rule. The rule isn’t limited to actual harassment, which would involve sending messages directed at a particular person who clearly doesn’t want them. Rather, it explicitly extends to simply posting messages for others to read, which posts the subject might not like. This rule purports to apply to entirely off-campus speech — a reversal of the Leonard Law, which was intended to heighten protection of student speech on campus. Even high schools are often prevented from limiting this kind of speech.
Threatening or harassing speech? Fine. It’s likely perfectly fine to prohibit threats and harassing conduct. But teasing? Your feelings are not an exception to the First Amendment, nor are they a principled basis for subjecting speech to punishment.
The cyberbullying policy concludes with an insult: after listing (protected) speech prohibited by the policy, it states that it doesn’t limit protected speech:
The term “bullying” and “cyber bullying” shall not be interpreted to infringe upon a student’s right to engage in legally protected speech or conduct.
Relatedly, the policies regarding access to the internet through the College — and, mind you, students are required to live in the dorms for most of their years on campus in order to foster “free and wide-ranging expression of ideas[.]“ (pdf, p16) – prohibit:
Harassment, intimidation, copyright infringement and other inappropriate or illegal behavior are not unique to technology. In addition to the College’s Statements of Conduct, other activities that threaten the integrity of systems or harm individual users are not allowed. The list of violations includes, but is not limited to: [...]
using e-mail or personal web page advertising to solicit or proselytize others for commercial ventures, religious or political causes, or for personal gain; or viewing obscene, pornographic, or similarly offensive materials in non-private college facilities.
So: totally OK to look at pictures of that woman in Tijuana with the donkey if it’s in the privacy of your dorm room. Just, for the love of God, don’t talk to people about God or politics.
But wait, there’s more! I could continue — there are questionable policies impacting both student media and the ability to protest, but those will have to wait for a subsequent post.
What can happen — and what has happened
“Why do you care? You graduated. Move on, broski.” First, I write about other schools‘ free speech and other speech issues, and it would be wrong to ignore my own alma mater’s policies. Second, I’d like to see the stature of my alma mater improved, and wouldn’t want to see it run intro trouble because of ridiculous policies.
Plus, perhaps most troubling is that Whittier is well aware of the gulf separating its promises, the law, and its written policies. I’ve brought it up repeatedly, privately and publicly, yet the policies persist — and (as with the “cyber-bullying” policy) have gotten worse. Further, administrators — sometimes well-intentioned but misguided as to their authority — have overstepped their bounds in the past. For example:
- prohibiting the distribution (even by hand) of The Liberty Bell, a conservative student newspaper which received no funds from the student body or College, on the basis that it didn’t have a permit from a board which couldn’t meet for months because it didn’t have a quorum (psst, these antics can get you in trouble ’round these parts — and this rule still exists a decade later, despite its past abuse];
- threatening to suspend the Lancer Society (a local fraternity) if the paper published details about the group’s annual dance (“Erotic City”), and issuing a policy that would have prevented the organization from promoting its event to students — even on Facebook;
- prohibiting the Sachsen Society (a coed fraternity/sorority, of which I am a member) the distribution in a dorm flyers about an on-campus event because they mentioned that a local hookah company would be present — and smoking is bad;
- prohibiting a student from promoting the online textbook-selling service she had created, as it would compete with the on-campus bookstore (and hilariously asserting that commercial speech is always unprotected);
- demanding that the Quaker Campus cover events in a particular way;
These are only some examples. I’m leaving several out pending permission from their participants, and will update if I receive permission. And these are only some examples I already know about.
In some of these instances, superiors intervened after the students asserted their rights. But students should never be placed in this uncomfortable position by virtue of unclear, overbroad policies. Rather, their rights should be spelled out clearly and strongly — and then respected.
What should happen: the Student Bill of Rights
First, Whittier should commit to rescinding its speech-restrictive rules. It’s free to encourage productive speech, but its current promulgations are confusing, ambiguous, and at times outright inviting censorious abuse.
Second, Whittier should take a proactive stance to student speech. I would like to see Whittier become the first of any California school — public or private — to have a green light rating by the Foundation for Individual Rights in Education. We’re better than Occidental, aren’t we?
Whittier can do so by committing to a strong Student Bill of Rights, which the student government is again seeking to revive. I’d proposed the second (the first was proposed during the 60s), and successfully shepherded it through the student government — and was roundly rejected by the administration. In hindsight, and with the benefit of a legal education, I see the many flaws in the document, but it’s at least a starting point for a discussion that has carried on with little progress for five years. The College should also commit to strong language protecting student speech – not stating that speech “should” be protected, but that it shall be recognized as protected. In doing so, I hope students will take the administration’s advice and consider the Joint Statement on Rights and Freedoms of Students – and I hope the administration and students alike will review the helpful guide provided by FIRE.
There can and should be a debate about the semantics of a Student Bill of Rights. What’s not debatable is the continued promulgation of Whittier’s speech codes in breach of both tradition and law. Protecting student speech ends with keeping rogue administrators in check, but it starts with eliminating the rules they can employ and replacing them with a clear, inviolable commitment to all student speech, whether we like it or hate it.
Whittier College ’08
President, Associated Students of Whittier College, 2007-2008
Loyola Law School ’12