Is Paragraph 6.4 of the Student Handbook Unconstitutional?


("Make the Case")

Drawing on the reading and your own considered, good judgment, make an argument for or against the constitutionality of Paragraph 6.4 of Section 6 in the Brandeis Student Handbook (the Brandeis' "speech code"), think of several powerful objections that might be raised against your argument, and respond to them. In the course of making your argument, try to defend your position on the most principled grounds you can muster.

Do you support campus policies that prohibit the use of racial epithets and ethnic slurs? If so, why? If not, why not? Brandeis's policy raises questions about the scope and limits of the First Amendment and the right of free speech. If a case were brought against Paragraph 6.4 of the Student Handbook, how would the arguments go? Which side would have the better argument?

The University of Michigan had a similar speech code, i.e, similar to Brandeis's ("similar" but not "identical") and it was challenged and the United States District Court for the Eastern District of Michigan found that Michigan's "code" failed to pass consitutional muster.

See DOE v. MICHIGAN (721 F. Supp 852)1989

If the same court were to entertain Brandeis University's provision (Paragraph 6.4 of the Handbook) would it suffer, do you think, the same fate? If so why; if not, why not?

Then take a brief look at Stanford's provision. If Brandeis were to adopt it, and rely on its wordings, would it meet the concerns of the Michigan Court? If so, would you be inclined to recommend that Brrandeis change the wording of Paragraph 6.4 of the Student Handbook? And if you are not quite happy with stanford's policy on discriminatory verbal harassment, how might Paragraph 6.4 be changed or re-written to meet your and the Michigan District Court's objections? Or should it (Paragraph 6.4) be dropped altogether?

Your paper should be between five (5) and seven (7) pages in length, and typewritten or printed.

It is due on Monday, April the 7th, in class.


Is Paragraph 6.4 of Section 6
in the Brandeis Student Handbook Unconstitutional?

In the last few years a number of college campuses have experienced an alarming increase in various racial incidents, from racial graffiti in dorms to abusive racial slurs and epithets on campus. As a result, several universities have adopted policies prohibiting "discriminatory verbal harassment" or "personal vilification." Brandeis is no exception. Six years ago a paragraph was added to a section of the Student Handbook on "Rights and Responsibilities," Section 6, Paragraph 6.4. The Paragraph reads in full as follows:

Racial Harassment: At Brandeis University, any faculty member, employee, or student who racially harasses a member of the University community shall be subject to disciplinary action, up to and including termination of employment or dismissal of a student from the University. Derogatory comments, epithets, or other behavior are considered racial harassment if the conduct:

(A) demeans the race or ethnicity of the individual or individuals; and

(B) creates an intimidating, hostile or dangerous environment for education, University related work, living, social, or other University authorized activity.

The Brandeis provision on derogatory comments and racist epithets is not an isolated statement of University policy. It is articulated as part of a number of concerns. It appears in a Section entitled "Policies on Equal Opportunity and Affirmative Action," and directly follows the University's policy on sexual harassment. It figures, therefore, as part of the University's commitment to the principles of equal protection and non-discrimination. The University is equally committed to principles of free inquiry and free expression, but that commitment is articulated elsewhere.

The provision is also an interpretation of a more fundamental standard of personal conduct required of all members of the Brandeis University community. The following statement appears in the Introduction to Rights and Responsibilities: "In a University community it is essential that safeguards be provided for each community member's freedom to teach and freedom to learn. In protection of these freedoms, the University must establish certain standards of personal conduct." Paragraph 6.4 is a specific instance of Paragraph 2.1 which states the standard in fundamental form that "A student is expected and required to respect the integrity and personal rights of others."

Since incidents in recent years on college campuses throughout the country have revealed some doubt and disagreement about what this fundamental standard might entail for members of the University community in the senstive area where the right of free expression can conflict with the right to be free from invidious discrimination, Paragraph 6.4 is intended to provide students, adminstrators, faculty, and staff with some guidance in this area. But does that guidance constitute an appropriate (and constitutional) limitation of free expression? In thinking about your answer, you might find some of the following considerations useful:

1. The court opinions in Cohen v. California, United States Supreme Court, 1971, in Texas v. Johnson, United States Supreme Court, 1989, and in Village of Skokie v. National Socialist Party of America, Illinois Supreme Court, 1978, all in the Philosophy of Law Textbook, may come in handy in thinking through and constructing your argument. Each opinion has a word or two to say about the scope and limits of freedom of expression and the First Amendment and may help you work out the scope and limits of Brandeis' policy to restrict the use of derogatory racial comments and epithets by members of the university community.

2. Thmoas C. Grey, Civil Rights v. Civil Liberties: The Case of Discriminatory Verbal Harassment which explores the difference between a "civil rights" and a "civil liberties" approach to verbal discriminatory harassment, may also prove enlightening in Philosophy of Law, pp. 339-355

3. Part of the function of the criminal law is to prohibit and punish harm that is inflicted on a person against his or her will. Racist and anti-semitic slurs and epithets can inflict real harm that is non-trivial and long-lasting. Why not restrict and/or linit the use of racist and anti-semitic insults and slurs whose primary purpose is to hurt, not to inform? Why shouldn't the harms arising out of (1) the danger of immediate violence; (2) the psychological and emotional hurt that a person subject to abuse may suffer; (3) the general offensiveness that the use of such language may cause; and (4) the destructive long-term effects from the attitudes reinforced by abusive remarks count as harms that the criminal law ought appropriately to prohibit and punish? Such harms can be as painful as a blow to the head or a punch in the stomach. They can be deeply felt and cause permament damage.

4. There are two related, yet separable, questions that you may wish to address: Do you think that restricting the use of racial epithets and slurs by a university can be justified? And, if so, do you think that the wording of the Brandeis policy is such that it serves as an example of a justifiable restriction? One way to explore the scope and limits of the Brandeis policy (is it too broad, is it too narrow?) is to think up a number of hypothetical situations and/or examples of conduct which might be sanctionable under the provision on the model of the class handout "What Counts as Discriminatory Verbal Harassment under the Brandeis Policy?" (Class Hand-out).

5. The narrow focus of the Brandeis provision may please some civil libertarians. In the areas it does not touch it would seem to favor what civil libertarians most want: more speech. On the other hand, by virtue of its narrow focus the provision may lack neutrality. What do you think? It regulates only speech bearing on matters of race and ethnicity while neglecting other speech that might be just as demeaning: insults and epithets directed at a person's gender, national origin, sexual orientation, handicap, or social class. It would also seem to favor "politically correct" egalitarians over their adversaries in the campus martket-place of opinion. The provision obviously takes powerful and emotionally rhetorical weapons away from bigots without imposing comparable restrictions on the more liberal-minded.

6. The Brandeis provision tracks the form of injury dealt with by a civil rights approach, i.e., speech creating a hostile environment that denies equal educational opportunity. Talk of "hostile environments" may appear overly broad but the principles of equal treatment, including Title IX of the Civil Rights Act, not only entitle but require universities to punish discriminatory conduct, at least if it becomes sufficiently widespread to create a pervasively hostile environment. The analogy is with an employer's obligations to deal with sexual and racial harassment by workers in the workplace. When female or black emloyees must endure a barrage of demeaning sex- or race-based insults from co-workers, an employer who ignores the situation may be guilty of unlawful sex or race discrimination. In Bohen v. East Chicago Judge Richard Posner put the workplace equivalent this way: "By taking no steps to prevent sexual harassment, the city created a worse working environment for women than for men . . . . That is discrimination. It is as if the city decided to provide restrooms for male but not female employees, and when pressed for a reason said it simply didn't care whether its female employees were comfortable or not." To avoid liability, an employer must take reasonable steps to keep verbal as well as physical or otherwise coercive abuse below the level of a "sustained pattern of harassment." A civil rights approach to verbal abuse and hate speech simply applies the doctrine of hostile environment discrimination to the university. Most educators like most employers are required by law to provide equal opportunity to women and students of color. Campus harassment can make the educational environment hostile, just as workplace harassment makes the employment environment hostile. Brandeis first recognized this with respect to sexual harassment and adopted disciplinary restrictions accordingly. Why not treat racial and/or anti-gay and anti-handicap harassment in the same way? As a legal matter, an unremedied "sustained pattern of harassment" might make the university itself vulnerable to charges of unlawful discrimination. Prudent educators will want to prohibit acts of harassment before the point at which the conduct becomes a sustained pattern and thus produces a legally actionable hostile environment.

7. Does it matter, legally, that Brandeis is a private institution? Why? Why not?

8.. The Brandeis "civil rights" approach may vitiate the Brandeis policy and in particular Paragraph 6.4, from certain sorts of constitutional objections, but the University of Michigan's Policy on Discriminatory Harassment which appears to adopt this same approach was struck down in 1989. See Doe v. Michigan (721 F. Supp 852)1989Does the Brandeis standard escape the criticisms made by the Court of the University of Michigan's Policy?

9. The Brandeis provision also does not appear to make a distinction between racial epithets directed at individuals and those same epithets addressed generally to a campus audience. Is this a distinction the policy should make or is it a difference that ought to make no difference?

10. A committee at the University of Texas has proposed a regulaion of "racial harassment" tracing the Restatement of Torts definition of intentional infliction of emotional distress, with the addition of the element of intent to "harass, intimidate, or humiliate . . . on account of race, color, or national origin." Establishing a violation requires an actual showing of "severe emotional distress" on the part of the victim. Does any part of the Texas proposal improve upon the Brandeis policy?

11. The University of California has adopted a prohibtion on student harassment by "fighting words," defined as "those personally abusive epithets which, when directly addressed to any ordinary person are, in the context used and as a matter of common knowledge, inherently likely to provoke a violent reaction whether or not they actually do so." See Chaplinsky v. New Hampshire (1942)

12. Stanford's "Discriminatory Harassment Provision" is different from Brandeis's policy. Does it include words or phrases that you would like to see included in the Brandeis regulation? The first two sections of the Stanford policy are devoted to restatements of the university's commitment to principles of free expression and equal opportunity. The Preamble states a Fundamental Standard requiring students to act with "such respect for . . the rights of others as is demanded of good citizens."

The Stanford Discriminatory Harassment Provision

1. Stanford is committed to the principles of free inquiry and expression. Students have the right to hold and vigorously defend and promote their opinions, thus entering into the life of the University, there to flourish or wither according to their merits. Respect for this right requires that students tolerate even expression of opinion which they find abhorrent. Intimidation of students by other students in their exercise of this right, by violence or threat of violence, is therefore considered to be a violation of the Fundamental Standard.

2. Stanford is also committed to principles of equal opportunity and non-discrimination. Each student has the right of equal access to a Stanford education, without discrimination on the basis of sex, race, color, handicap, religion, sexual orientation, or national or ethnic origin. Harassment of students on the basis of any of these characteristics contributes to a hostile environment that makes access to education for those subjected to it less than equal. Such discriminatory harassment is therefore considered to be a violation of the Fundamental Standard.

3. This interpretation of the Fundamental Standard is intended to clarify the point at which protected free expression ends and prohibited discriminatory harassment begins. Prohibited harassment includes discriminatory intimidation by threats of violence, and also includes personal vilification of students on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.

4. Speech or other expression constitutes harassment by personal vilification if it: (a) is intended to insult or stigmatize an individual or a small group of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and (b) is addressed directly to the individual or individuals whom it insults, intimidates or stigmatizes; and (c) makes use of insulting or 'fighting words' or non-verbal symbols. In the context of discriminatory harassment, insulting or "fighting" words or non-verbal symbols are those 'which by their very utterance inflict injury or tend to incite to an immediate breach of the peace,' and which are commonly understood to convey direct and visceral hatred or contempt for human beings on the basis of sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin.

Prepared: March 26, 2003 - 5:02:29 PM
Edited and Updated, March 27, 2003

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