California: San Jose State State University revises repressive speech code for dorm students

There is good news today for students living in the residence halls at San Jose State University (SJSU). The housing department has revised several restrictive policies, including a previous FIRE Speech Code of the Month, thanks to the efforts of administrators seeking to protect the free speech rights of SJSU students.

In April 2009, FIRE named SJSU our Speech Code of the Month for a housing policy providing that

Any form of activity, whether covert or overt, that creates a significantly uncomfortable, threatening, or harassing environment for any UHS resident or guest will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution. The conduct does not have to be intended to harass. The conduct is evaluated from the complainant’s perspective.
The policy also listed examples of prohibited conduct including “verbal remarks,” “ethnic slurs,” and “publicly telling offensive jokes.”

As we stated at the time, “speech that makes others ‘uncomfortable’ is in large part what the First Amendment exists to protect.” Moreover, the policy’s provision that conduct would be evaluated from the complainant’s perspective directly contradicted harassment law, which requires that claims of harassment be evaluated from the perspective of a reasonable person—not the most sensitive possible person—in the victim’s position. Finally, we noted that the policy’s examples of prohibited conduct explicitly included protected speech, such as telling offensive jokes.

Shortly after we published the April 2009 Speech Code of the Month on our website, I was contacted by SJSU housing administrator Michael Palmieri. Mr. Palmieri expressed that he wanted to help reform the speech codes maintained by SJSU’s housing department, and he and I began a dialogue about free speech on campus. After almost a year of working with other administrators in the housing department, Mr. Palmieri recently contacted me again with good news: SJSU’s housing department revised not only the harassment policy that drew FIRE’s attention, but also a posting policy that previously required window displays to be “acceptable for public display, with due consideration given to the diverse population of the residential community.”

The new harassment policy for SJSU’s residence halls now provides only that

Any form of activity, whether covert or overt, that creates a threatening or harassing environment for any UHS resident, guest, or staff member will be handled judicially and may be grounds for immediate disciplinary action, revocation of the Housing License Agreement, and criminal prosecution.

Although FIRE still has modest concerns with this policy from a free-speech standpoint (it is unclear how “covert” activity could be truly harassing or threatening since, to constitute legally unprotected expression, harassing or threatening speech must be fairly severe and obvious), it is drastically better than its predecessor, which posed a serious threat to free speech.

Many thanks to Michael Palmieri and to Stephanie Hubbard, SJSU’s Associate Director for Residential Life, for bringing about these vital policy changes.

Copyright 2010 Foundation for Individual Rights in Education