There is a new free speech lawsuit on a college campus this week after three University of Houston students sued over a new anti-discrimination policy. The students are unnamed in the complaint, which was brought by Speech First. They alleged that they are chilled in expressing their views on issues like gender because they are now treated as forms of discrimination or harassment.
Under the new policy, discrimination or harassment on campus is now defined as including “negative stereotyping,” “threatening, intimidating or hostile acts,” and “denigrating jokes.”
In fairness to the university, it does include (unlike some universities) a rejected subjectivity as the basis for complaints:
“An individual’s subjective belief that behavior is intimidating, hostile, or offensive, in and of itself, is not sufficient to establish Discrimination or Harassment. The behavior must create a hostile environment from both a subjective and objective perspective such that it unreasonably interferes with, limits, or deprives a member of the university community of the ability to participate in or to receive benefits, services, or opportunities from the university’s education or employment programs and/or activities.”
The policy, however, includes microaggressions that can result in action if there is a pattern.
“Minor verbal and nonverbal slights, snubs, annoyances, insults or isolated incidents including, but not limited to microaggressions, are not sufficient to establish Discrimination or Harassment. However, if such incidents keep happening over time and are targeting a Protected Class, they can constitute Discrimination or Harassment in violation of this Policy.”
We have previously discussed microaggression policies and the free speech concerns raised by this ill-defined and highly subjective concept. Notably, a professor at the University of North Texas just won a critical motion in his case involving criticism of microaggression policies.
Free speech demands bright lines to avoid a chilling effect on speech. The new policy however is sweeping in its terms:
“Examples of Harassment include, but are not limited to: epithets or slurs, negative stereotyping, threatening, intimidating or hostile acts, denigrating jokes and display or circulation (including through e-mail or virtual platforms) of written or graphic material in the learning, living, or working environment.”
The most concerning terms are how “negative stereotyping, . . . intimidating or hostile act, denigrating joke” are defined. Since graphic material are include, it would likely include cartoons or other material containing such challenged views or comments.
A recent poll found that 65 percent of students feel that they cannot speak freely on campuses. Another poll at the University of North Carolina found that conservative students are 300 times more likely to self-censor themselves due to the intolerance of opposing views on our campuses. In a relatively short time, faculty and administrators have destroyed the status of campuses as bastions of free speech. Students now expect less freedom of speech in higher education where a new orthodoxy and speech intolerance has taken hold.
It is a death knell for our higher education, particularly at private universities, which are not directly impacted by First Amendment protections. The anti-free speech movement is making public universities the last line of defense for those struggling to preserve forums for free speech.
If this trend continues, students interested in seeking higher education without losing free speech rights may have to increasingly look to public universities. As someone who has taught at private universities for almost four decades, that would be a sad result not just for higher education but the country as a whole.
Here is the complaint: Speech First v. Khatur