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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Describe incident. including perceived has. to complainants education. employmen housing. or participatioe is a Universit activity (attach additional sheets as necessary) 'aci aes Aiu I alrTt ,vjaA'1r/AJ4 aie.r'.- e& aD duAr hebes d P - 7AT A"- 'P.SAiAL Cl'GC t6 -'P oL 7a s ea - Aow S l- A L'Ptmu nft r/y ASSraAJCL.L 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.