In response to a faculty union's grievance, the president of Rhode Island College has formed a committee of students and faculty members and charged that group with reviewing a controversial speech code that limits discriminatory speech in an effort to encourage diversity.
The committee will recommend changes that will bring RIC's speech code into compliance with state and federal laws, according to the official resolution passed Oct. 8.
The faculty union, RIC/AFT Local 1819, filed the grievance, claiming the speech code limiting discriminatory speech violates faculty members' contracts.
RIC's New Student Guide includes a policy prohibiting "jokes or demeaning statements about a person's gender, race/ethnicity, minorities, persons with disabling conditions, or other disenfranchised groups," according to the Associated Press.
But according to faculty union spokesman Daniel Weisman, that policy contradicts the contract, which "affirms academic freedom and freedom of speech."
"(RIC) can't do that," Weisman said. "(RIC) can't sign a contract with the faculty and then adopt contradictory policies."
Debate over speech codes in public and private schools is rooted in questions about how much colleges can legally do to create an environment free of discrimination and racism without infringing upon the fundamental right of freedom of speech provided in the Constitution. In 1969, the Supreme Court addressed the issue, when an Iowa public school attempted to prohibit students from wearing armbands to protest the Vietnam War, claiming the attire would disturb the school's environment. In Tinker v. Des Moines School District, the court ruled that the students had the right to wear their bands as a form of expression. However, the students' rights were not unlimited: the school officials could prohibit speech if such expression invaded "the rights of others," according to the court.
As a public college, RIC is more strictly bound by the First Amendment and other rights provided in the Constitution than a private university like Brown. RIC's officials are "state actors" - they make their decisions as a part of the government. The First Amendment prevents the government from violating an individual's right to expression, and as a public wing of the government, RIC and all public universities are bounded by this restriction. Still, as a result of the Tinker case, school officials, whether at public or private institutions, have the right to limit expression when it violates "the rights of others."
The RIC policy in question applies to students and faculty members, but not to visitors to the campus, according to Weisman. Consequences are "anything from admonishment all the way through removal of some rights and privileges," he said.
The policy "plainly goes against free speech and the First Amendment," said Professor Jason Blank, president of the faculty union. "The fact is I can walk into my classroom and say something incredibly stupid, something sexist. It is politically incorrect, it is extraordinarily dumb - none of us would condone it. But the fact that I can do it - that's free speech."
Blank said the policy is "saying that the college should be somewhat above the law."
The faculty union's grievance stems from an incident on Feb. 19 that drew attention to the policy. Two student mothers at RIC's cooperative preschool program got into a heated debate about welfare and race. One student reportedly said something that the other perceived as racially offensive.
The offended student reported the incident to the coordinator of the program, Professor Lisa Church, who was not present when the offensive statement was made. Church refused to punish the offender, but because the offended student subsequently filed a complaint with RIC, the college held a formal hearing and charged Church with "discrimination ... creating (a) hostile environment (and) racism" and "not reporting the offensive statement," according to Blank.
"Everything she was charged with was ludicrous," Blank said. "She wasn't in the room, she did report it and she arranged sensitivity training for the entire co-op. She did none of what she was charged for."
After the hearing, Church, who is a lawyer, was fully exonerated.
"If Lisa said, 'You can't say things like this,' she would have violated the Constitution. The issue of forcing her into a hearing was really sad," Blank said. "The incident sparked our concern over this policy, which we had questioned in a number of previous cases."
The Foundation for Individual Rights in Education, a non-profit group dedicated to academic freedom, has been particularly outraged over RIC's policy and the fact that RIC put Church through what FIRE calls a "trial" in an Oct. 1 press release.
However, RIC spokesperson Jane Fusco said FIRE is incorrect in calling the hearing a "trial," saying it was more of a "fact-finding mission, a discussion to hear all parties."
"You have a speech code that is plainly unconstitutional," said David French, the president of FIRE. "Universities always try to do this, by banning 'demeaning' speech. There's no objective definition of something 'demeaning' - it's absolutely unconstitutional."
FIRE also objected to how RIC handled the situation involving Church.
"The other thing is, it is misleading to say, 'We're merely investigating,' and that every complaint deserves an investigation," French said. "Let me suppose I said to you I have a complaint against my philosophy professor because he's black. Nobody would investigate that. What we had here was, on its face, indicated that the complaint was not protecting constitutionally protected speech. Lisa Church was investigated improperly."
"What is unlawful are actions that are so severe or pervasive that they essentially deny a person to get an education," he said. "Someone at three in the morning targeting African American students with phone calls, preventing them from going to class - that's unlawful discrimination. Something that hurts feelings or makes somebody angry is not."
As a public institution, RIC cannot have a policy that violates fundamental rights, French said. He said the union's grievance represents an "important moment in the battle of speech codes."
"It's the first time a faculty union has recognized the danger speech codes represent for faculty members to do their job," he said. "It's a very simple resolution; (RIC) does not have to think this through. The First Amendment defines their obligation."
Brown "provides a structure within which individual freedoms may flourish, but not so self-indulgently that they threaten the rights or freedoms of other groups or individuals," according to the University's Equal Employment Opportunity and Affirmative Action website.
Associate Provost and Director of Institutional Diversity Brenda Allen said maintaining such a balance is complex.
"I don't think any of this is simple," Allen said. "Basically, you have two sides of a freedom-of-speech argument: We worry about hate speech and using language to primarily offend, but on the other side we're worried about students being free to express ideas and values and their perspectives. The majority of people are operating somewhere in the middle. Just how to reconcile one's ability to express oneself as openly as possible and to agree what speech is hurtful, it's a fine line. It depends on many facts."
Allen said Brown is currently reviewing its policies of discrimination and harassment to "make sure we have procedures which are prompt and reliable."
And although the University's policies provide guidance - particularly the notice of non-discrimination and the policies of academic freedom and freedom of expression - Allen said every situation is different and every complaint must be considered on its own.
"Bottom line, discrimination and harassment in the form of verbal or physical behavior is particular to situations," she said. "If someone said something that was racially offensive, my first course of response, of course, is to find out the situation. You want to gather the facts. Just what violates someone's rights often depends upon the situation. To give a response saying, 'Things are always covered by free speech' - none of it is that simple."
