The Michigan Daily- Friday, March 20, 1992- Page 5
&HATE SPEECH:
N I
No, says SRC,
forcing 'UT'
to re-evaluate
student code
by David Rheingold
Daily News Editor
The University's attempt to create a student
conduct code has withstood a lot of battering.
Anti-deputizationprotestersin 1990marketed
T-shirts embossed with the "No guns, no cops, no
* code" slogan. Last spring, the editors of four
campus publications, including the Daily, pub-
lished a letter asking the administration to elimi-
nate the policy. The Michigan Student Assembly
in January asked the University to abandon the
policy. And later this month, MSA will ask
students to adopt a similar stance.
But now, more than four years after the Uni-
versity implemented a code, cracks are forming
in the policy's infrastructure. The University's
executive officers, in a meeting Wednesday,
seemed positive about the possibility of adopting
* an alternativepolicyproposed byMSA's Student
Rights Commission (SRC), said Walter Hamson,
executive director of university relations.
"We don't want to move ahead until we have
the agreement of the SRC, but I would guess that
we're within a couple weeks of something," he
said.
A new policy would make a significant mark
in the saga of the University's attempt to create a
discriminatory conduct code for students, which
was firstdiscussedmord than 20 years ago during
protests in 1970, and was officially bom four
years ago yesterday.
The original policy
The University first implemented a student
conduct policy in 1988, which included behavior
that "creates an intimidating, hostile or demean-
ing environment for educational pursuits or par-
ticipation in University-sponsored extracurricu-
lar activities."
This measure came on the heels of a series of
racist episodes, including the distribution of sev-
eral fliers and the airing of racist jokes on a
*campus radio station. Various groups, such as the
Black Action Movement and the United Coali-
tion Against Racism (UCAR), protested events
that began in the spring of 1987 with a flier in
Couzens Hall declaring an "Open Season on
Blacks."
"Indirectly, (the policy) was a response to the
fliers and what was thought to be an atmosphere
on campus that was not hospitable to students of
color," Harrison said.
But many of the students who clamored for
action in response to the incidents were also
miffed by the policy.
"I think the code, the way the University has
formed it, was not what the students originally
wanted," saidMedical School student Kim Smith,
a former member of UCAR.
Smith said she wanted the University toestab-
lish a racial harassment policy, but suspected the
administration seized the opportunity to create a
broader code it had wanted for much longer.
"Now a speech code, that's something much
more far-reaching ... and that's not something
that we'veeverbeenpartof," Smith said. She said
she thinks the policy has not improved race
relations on campus, pointing to campus
deputization, low minority enrollment and the
Michigan Union entrance policy as examples of
the University's indifference toward Blacks.
The original policy was in place for little more
than a year when an anonymous teaching assis-
tant, with the aid of the American Civil Liberties
Union (ACLU), sued the University because he
said he felt the policy hindered his ability to
pursue his research, which examined differences
between people of different gender and race.
In August 1989, U.S. District Court Judge
Avern Cohn declared the policy unconstitutional,
calling it vague and overbroad. The University
did not appeal the ruling, but instead imple-
mented another policy, titled "The Interim Policy
on Discriminatory Conduct," whichhasremained
in place until today.
MSA criticizes interim policy
The interim policy prohibits physical acts,
threats, verbal slurs, invectives and epithets di-
rected at an individual's race, ethnicity, religion,
sex, sexual orientation, creed, national origin,
ancestry, age or handicap.
Like the first policy, it has drawn a substantial
amount of criticism. In January, MSA unani-
mously asked the administration to get rid of the
policy.
ThecatalystwasinpartMSA's Student Right's
Commission, which had recently compiled a 42-
page report attacking the policy. The SRC's
reportechoed whatmany opponents ofthe policy
had been saying all along: any sort of non-
academic conduct code inhibits the exchange of
free ideas.
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Left: A sample incident
reporting form used to file
complaints under the
University's Interim Policy
on Discriminatory Conduct.
"It's an obvious threat to students' rights,"
said SRC Chair Michael Warren. "The First
Amendment has been enacted in this country to
protect the free speech rights and free expression
rights of all citizens. ... Just because students are
in a university doesn't mean they lose those
protections."
University General Counsel Elsa Cole said a
policy is better than handling complaints through
the court system because of the amount of time
and expenses involved.
"A student could likely graduate before his
case was ever heard. They take four or five years
to wind through the courts, and you have to pay
your legal fees all that time," she said.
At the center of the debate is whether auniver-
sityshould impose limits on non-academic speech
and conduct, and if so, how it can do so while
allowing freedom of speech.
"The line that I would try and stand on is
whether it's capable to state in rational terms,"
said Georgetown law Professor Peter Byrnne. "I
think that just vulgar ... insults and demeaning
expressions essentially are designed to preclude
discussion rather than induce discussion."
Warren, however, said all speech must be
protected to avoid making this distinction.
"'Down with Zionism' may or may not be a
racist comment," he said. "Once you start saying
that's racist, there's a whole variety of other
things that you could say are racist. When you
say, 'Down with affinnative action,' is that rac-
ist? That slope becomes very slippery once you
start defining political ideologies as racist ideolo-
gies.... You have to protect the hateful speech in
order tobe able to protect the coreof vital political
dialogue."
The SRCnotonly called the policy wrong, but
claimed it is unconstitutional. Warren and third-
year law student Peter Mooney co-wrote the
report, which says the interim policy institutes
speech regulations not provided for by the law.
'Fighting words'
Caught between the University and the SRC
is the doctrine of "fighting words," which was
laid down in a 1942 Supreme Court case titled
Chaplinsky vs. State of New Hampshire.
The Supreme Courtdefined fighting words as
"those which by their very utterance inflict injury
or tend to incite an immediate breach of the
peace," and hence may be sanctioned.
The SRC says the interim policy is unconsti-
tutional because it regulates speech that does not
have to result in violence, but Cole said this
interpretation was not specified in U.S. District
Court Judge Avern Cohn's repudiation of the
University's original policy.
"That's an interpretation that was given by the
district court that reviewed the University of
Wisconsin's system policy, and Judge Cohn did
not go that far in his opinion," Cole said.
ColesaidtheinterimpolicymirrorsMichigan's
Tort of Infliction of Emotional Distress, which
targets words that result in extreme emotional
injury.
"The Tort of Infliction of Emotional Distress
is directed towards words that cause emotional or
mental injury rather than physical injury....
Words that are offensive but do not actually
injure someone would not be covered by the
code, but words that show demonstrable injury or
harm go beyond being offensive," she said.
Regardless of its constitutionality, the interim
policy has not been challenged in court.
Wayne StateUniversity law Professor Robert
Sedler, who argued for the ACLU against the
original policy, said the ACLU has left the in-
terim policy alone because a student probably
would not complain about not being able to use
the speech it sanctions.
"In order for the ACLU to do anything with a
racial epithets code," he said, "we have to be
contacted by a student who was subjected to
disciplinary procedures under it.... We're not
going to bring a broad-based suit because this
isn't a broad-based code."
University law Professor Alexander Aleinikoff
said he opposes broad speech codes, but said of
the interim policy, "It's so narrow that it is un-
likely that it will be deemed unconstitutional."
He said he thinks the best solution is small
group discussion -"making everybody see them-
selves as part of the University community with-
out being stigmatized."
But any effort, he said, has "got to be from the
bottom up."
Types of complaints
Ultimately, the policy itself is responsible for
determining the handling of complaints.
Seventeen formal complaints have been filed
under the interim policy, and approximately 327
informal complaints have been handled through
the University Housing Division between 1988
and December 1991.
Informal complaints are resolved through in-
formal mediation, while more serious complaints
go through a formal structured process that may
lead to a hearing, said policy administrator Vir-
ginia Nordby.
The records show that sexual harassment is
the most prevalent at the University, making up
nearly 64 percent of all complaints.
Racial harassment followed with 22 percent,
then sexual orientation harassment with 11 per-
cent.
Most of the complaints stemmed from graffiti
and obscene telephone calls; not surprisingly, the
alleged perpetrator was unknown 83 percent of
the time.
These cases were often resolved through in-
formal group discussions, counseling, removal
of the graffiti and the attachment of phone traps,
but the incidents in which the alleged offender
was known were handled through a variety of
methods. Some were forced to apologize, while
others were given restraining orders from resi-
dence halls.
These following cases illustrate several for-
mal and informal complaints that have been filed
under the interim policy:
Two male students presented a movie to
their film/video class as part of a project. In it,
they superimposed a female classmate's face
over a woman who was pouring milk over her
genitalia and masturbating. The female class-
mate filed a complaint, and after some discus-
sion, it was referred to the LSA dean. The report
did not detail the final resolution.
HA Black woman and her young daughter in
family housing were about to go to sleep for the
evening, when an argumentnextdoor culminated
in somebody shouting, "I don't care, nigger,
nigger, nigger!" The girl then asked her mother
the meaning of the word "nigger." The complain-
ant also mentioned several other racist incidents,
including dead animals left near other Black
residents' doors and postboxes and an attempt
where aneighbor apparently droveher carstraight
at her and her daughter. The report does not state
any other resolution, except informal discussion
and an oral reprimand.
HA woman called aman as a "fag."She said
she did so out of anger, not knowing that he was,
in fact, gay. She apologized for the remark and
wrote a three-page paper summarizing several
magazine articles about homosexuality.
A woman was pulled into a kichenette by a
man who ignored her requests to let go of her. He
left, but only after she promised to come to his
room later. After filing the complaint, the man
was placed on probation, had to apologize to the
student and attend counseling at Counseling Ser-
vices and the Sexual Assault Prevention and
Awareness Center.
Only one of the complainants requested a
formal hearing, but later withdrew the request
fearing retaliation from the accused.
Both Mooney and Warren concede that the
policy has not been abused, but say the potential
exists.
"I don't sense that there's a big effort to go out
there and solicit complaints," Mooney said.
"We're aware of other campuses where codes
like this are being much more strictly enforced.
We're convinced that in the future that if some-
one was more aggressive in enforcing the interim
policy, itcould be used to silence a lot of speech."
Students and the policy
Warren interpretsMSA's unanimous nod as a
strong vote for student support. "When you have
the most radical, socialist people, people that
have called George Bush an international terror-
ist, voting with ultra-conservative, Christian fun-
,Fnmatnt1kcvcnn thecrncnt _ un,,hiuvtfinr
Rackham student Caurnel Morgan, who
worked with the Black Action Movement in
1988, said he thinks the policy only hits the
surface of racism on campus.
"I think more than anything else it removes
the University from culpability. It says if you do
something wrong... the University says, 'It's not
our responsibility. We don't sanction that kind of
behavior, and will take action to punish it after it
occurs"'
Morgan said the administration should in-
stead deal with Black students directly rather than
through a separate "satellite office."
Billie Edwards and Jim Toy, co-directors of
the Lesbian-Gay Male Programs Office, said
they have mixed feelings about the policy.
"Physical acts and threats have no place on
campus and need to be curbed," Toy said. "Be-
yond that, I think the importance of free speech is
paramount, andl think the interimpolicy goes too
far."
But Edwards said she is uncertain how the
issue should be dealt with. "I think there needs to
limits on what some people do to hurt other
people. Names hurt. Words hurt. And that's the
truth. And I don't know how this issue can be
dealt with at this time without some sortof policy,
especially around the issue of sexual orienta-
tion.'
Re-evaluating the policy
Mooney and Warren proposed a separate
policy last month titled "University of Michigan
Policy On Violent Intimidation On Campus,"
which narrows the type of speech prohibited.
Harrison said most of the University's execu-
tive officers at a meeting Wednesday were en-
couraged by the proposal, and he said it's ex-
tremely likely that some revision will come soon.
The major area to be ironed out is the descrip-
tion of speech that can be sanctioned. The SRC' s
policy narrowed the speech to conform to its
interpretation of "fighting words," but will have
to negotiate it with the University's general coun-
sel, Harrison said.
"My inclination right now is to say we would
make their's an interim policy, giveit ayear to see
how it worked, and then make it a permanent
policy - after deciding if it works," he added.
He said the policy can either be formally
approved by the University Board of Regents or
informally adopted by President James
Duderstadt. He said the latter is more likely
because the administration would then have more
flexibility in dealing with it.
Several major differences between the SRC's
proposal and the interim policy lie with technical
aspects such as the record-keeping and the hear-
ing processes.
The SRC, however, has put forth a centralized
system that it says would avoid abuse. "To keep
accountability within the system, it needs to have
a minimum amount of information about each
complaint that goes forward and how that's re-
solved -either informally or formally," Warren
said. "Andrightnow, there's basically very, very
sketchy information about what is going on infor-
mally, and it's completely inadequate."
But Nordby said a single, centralized office
could dissuade people from reporting harass-
ment.
"I'think that a decentralized system not only
encourages reporting, it engages the faculty and
student body out there in the University.... If
you're talking about suspending a student or
expelling astudent, there needs tobe some central
involvement if not total control, just to make sure
everything is handled correctly," she said.
The proposed policy would also change the
structure of the hearing process. Some major
changes the SRC's policy has added which the
interim policy's hearing process does not include
are
Randomly choosing six members of the
student body to serve on the panel similar to a
juror selection process. Under the interim policy,
each school's governing body appoints jurors.
Requiring the alleged victim -rather than
any member of the University community - to
file the complaint
EHaving alaw school faculty member, rather
than the policy administrator, oversee the hear-
h a-ing.
Requiring five out of six jurors, rather a
majority out of five, to sanctions the alleged
offender.
But the main part that both sides will have to
smooth out is the legal definition of what consti-
tutes harassment. And because that is atthe center
of the debate over the interim policy, it is likely to
be a major issue in the upcoming weeks.
The SRC's original proposal said thatnotonly
must harassment be based upon one's race, age,
ancestry, disability, ethnicity, religion, gender,
sexual orientation or national origin, but it must
cause "substantial physical injury to that person ."
Nordby's main concern is that this definition
may exclude many forms of sexual assault. "I
don't like meaning that we can't do anything
about sexual assault unless there's serious physi-
cal injury," she said.
"It's very severe. All studies indicate that, and
sometimes it comes back for years and years.
Some women never come back from the trauma
of date rape. And to say they have to come back
from it bloody and beaten is really back in the
dark ages, quite frankly."
One common goal
Many people on both sides of the debate stress
that ultimately there is a need for more education
and discussion.
Mooney said racist and sexist speech would
be easier handled if.it was discussed openly rather
than suppressed by a code.
"The problem with that kind of chilling (ef-
fect) is, if students have those kind of views, how
are they going to be resolved?" hesaid.
State Rep. Perry Bullard (D-Ann Arbor) said,
"I think where (universities) see a rise of racist
expression, the need is clearly there for leaders as
well as concerned members of the community to
them. But if in this process one
individual should jaw another, then
somebody would probably take
issue.
However, many times, this line
is not so finite. Take, for instance,
free speech. As Americans, we
have a great deal of latitude in what
we can say and print. The difficulty
is figuring out when our words are
touching the tip of the next
person's nose.
The problem is twofold: where
the line should be drawn and who
should be drawing it.
I don't know the correct answer
to either question, but I do know an
incorrect response to the second.
University administrators.
Many scholars say that erring
on the liberal side is better than on
the conservative. But this doesn't
mean we should let anyone say
anything. That's too easy an
answer.
Some forms of speech are open
attacks on certain people or groups
of people. The most overt examples
of these come in the form of what
is now being categorized as "hate
speech."
Michigan has had its own
experience with these types of
documents. Incidents of racial, anti-
Semitic, and homophobic fliers
being distributed in University
residence halls have checkered the
recent past.
The targets of these fliers had
reason to feel threatened, even if no
open threat was issued.
Yet even if we restrict our own
speech, we are left wondering what
the limits should be. Everyone has
their own perceptions of any given
statement. What may be a joke to
some is ethnic slander to others.
And to say that words are less
dangerous than actions and
therefore should be given free reign
is a naive copout. Adolf Hitler and
his Nazi propaganda machine
proved that words are powerful.
Holding every article of speech
to one standard is ludicrous; no one
could fairly create such a standard.
So each case should be judged
individually - but who should do
the judging?
We have laws about fighting
words and libel which judges
interpret in making these judg-
ments. However, many university
administrators now want to get in
on the act.
Major schools throughout the
country are adopting codes to
regualte campus speech.
How can these administrators
feel qualified to make such
judgments? Why should college
students be held to a different
standard of free speech than the rest
of society?
Both questions are open to
endless speculation.
I do not want to see a prolifera-
tion of these hate groups on this
campus, but the problem is
obviously complex. We can't let
our university administrators, who
often display the subtlety of a pit
bull, handle such a delicate issue.
nose."
I still
enjoy the
terse accu-
racy of this
image. If
people want
to spend their
entire lives
swinging
their arms
around, then
no one in this
country is
going to stop
Matthew
Rennie
Universities
overstep
bounds on
speech codes
I had a high school history
teacher who summarized our rights
as Americans with an illustration.
"The freedom to swing your
arm," he said, making large circles
in the air with his own arm, "stops
at the tip of the next person's
Channels of harassment at University
These are the methods used in
harassment, according to tabulations
of complaints filed under the Interim
Policy on Discriminatory Conduct.
I
I
i.