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Stefan Linge
Political Science 499
How Ambiguous Anti-Bullying/Discrimination, and Peer Harassment Policies
can be an Impediment to Bi-Partisan Civil Discourse on College Campuses.
Introduction
In the technology driven world that we live in, bullying, harassment, and
discrimination can take many shapes and sizes. However, it’s important that any
attempts to curb this behavior does not violate people’s right to free speech and to
engage in productive civil discourse. College campuses are ground zero for this
debate, and the intention of this paper is to examine how the problem exists, and
what can be done to fix it.
Stefan Linge
Political Science 499
Literature Review
The National Institute for Civil Discourse broadly defines civil discourse as
the rampant exercise of free speech practiced by many to forge innovative solutions.
On the flip side, our founding fathers believed that limiting the limits on what people
could say, was essential for democracy to thrive. The Association of American
Colleges and Universities found that only 30 percent of students agreed that it was
safe to hold unpopular view on campus. This raises a serious question in regards to
why college campuses aren’t ground zero for students and faculty members of all
different types of opinions and beliefs to collaborate and express their views. There
are some explicit dimensions of this problem that exist and in some instances,
colleges and universities have used their anti-bullying/discrimination and peer
harassment policies to the detriment of constitutionally protected civil discourse.
It is impossible for open civil discourse to occur on campus without unabated
access to free speech. A great example of this predicament is the court case DeJohn v.
Temple University. This case is discussed extensively in The Misapplication of Peer
Harassment Laws on College and University Campuses and the Loss of Students Speech
Rights. Mr. DeJohn was a graduate student at Temple University and his National
Guard unit was called to active duty while was enrolled. When he got back, he was
informed that he was dismissed from his academic program. Mr. DeJohn claimed
that he was dismissed for making comments about the dangers of allowing women
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Political Science 499
to serve in combat arms jobs in the military. Part of the universities harassment
policy prohibited “generalized sexists remarks” and a federal judge struck it down
deeming it broad and not specifically tailored to a certain interest. This case is not
alone because there are a wide range of areas where similar policies have been used
to stifle speech or interactions. For example, they have used policies to find students
guilty of harassment for making jokes about student groups gaining weight and read
contentious books in the presence of other students. (Majeed) On the flipside, this
has also happened to teachers and faculty. In 2007, Brandeis University in Waltham,
MA, found a professor guilty of racial harassment for explaining the meaning of the
term “wetback” and how it is a derogatory term used to categorize Mexican
immigrants. This is important to civil discourse because it raises the question of
whether someone has the right to be “not be offended” by someone else’s free
speech. For example, Texas A&M universities anti-harassment/student rights policy
mandates respect for personal feelings and freedom from indignity. (Majeed)
Overzealous rationales of these policies have a significant impact on people
with conservative minded political ideals. Professor George Fletcher, a criminal law
professor at Columbia University in New York City, presented a hypothetical case to
his students where a woman seeking an abortion was attacked by an individual and
the fetus died as a result. The woman in this case was thankful for the result. Several
students filed complaints attesting that constituted a hostile environment for female
students. Professor Fletcher was then denied his requests to teach an LLM course he
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Political Science 499
was more than qualified to teach. (Majeed) A recent incident at Stanford University
embodies this problem. The Stanford Graduate Student Council and the
administration voted to deny funding to an event hosted by the Anscombe Society
which was centered on traditional sexual ethics and traditional marriage in fear that
it would create a hostile environment for certain groups. (Gonzalez) A third example
took place at DePaul University where school administrators charged the DePaul
Conservative Alliance with harassment for holding an “affirmative action” bake sale.
They said that the sale was in an inappropriate location, even though they had
allowed PETA a table at the event the week before. (Majeed) However, the
marginalization of both conservative and liberal political ideals exists due to
differing political climates found in different geographical locations of the United
States. (Dey) If a student attends a university where the political climate fits his or
hers bias, they may never be forced to step out of their comfort zone, impeding their
educational and professional growth. (Dey)
Another them that is central throughout this issue is these problems exist in
part because colleges and universities don’t put enough emphasis on learning to
listen to other people’s perspective. Only 28 percent of students said that senior
campus administrators from their respective campuses frequently advocate the
need for students to respect perspectives different from their own. (Dey) Likewise,
only one third of students and faculty feel that academic institutions make
perspective taking a major curriculum focus. (Dey) No matter how unpopular a
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Political Science 499
group or person may be, every person is entitled to be treated with dignity and
respect, even from their ideological opponents. (Schweitzer) Campuses are full of
different cultural and ethnic events which can help students learn about other
people’s perspective and background.
Lack of perspective taking can ultimately lead to the framework of civil
discourse breaking down. (Khaja) This can begin even with backlash towards
common ambiguous terms such as diversity and social justice. (Khaja) Use of these
words can automatically trigger resistance from people who think their opinion
doesn’t matter doesn’t matter in that context. (Khaja) However, the lack of
perspective taking starts outside the classroom with the rise of the technology age.
Anonymous dialogue destroys the framework of civil discourse because it allows
people to say whatever they want without fear of repercussions. (Khaja) The lack of
classes and resources for students to deal with this rampant incivility also is part of
the problem. An idea for resolving this would to mandate and put more emphasis on
classes and workshops that help members of the college community talk about
tough issues. (Khaja) There are also issues with faculty that can harm widespread
civil discourse. If professors are relying on adequate student course evaluations to
make tenure, they might be less willing to push or discuss politically or socially
contentious topics that might hurt or offend someone’s feelings. (Khaja)
Limiting civil discourse in any form has serious consequences. The first
major problem is it doesn’t allow for colleges to be a true “marketplace of ideas” and
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Political Science 499
hinders educational and professional growth. Supreme Court Justice Anthony
Kennedy, writing for the majority in the case Rosenberger v. University of Virginia,
described free speech suppression and creative rationales as “stifling the
marketplace of ideas”, which is the backbone of academia. The court declared in the
landmark case that “the government may not regulate speech when personal
opinion is the rationale for the speech restriction.” Limiting civil discourse and free
speech has a multifaceted effect on types of speech. Even when these types of
policies don’t have the intention of suppressing speech, their presence can deter
people from opening their mouth to begin with for fear of repercussions. The
vagueness of what constitutes “harassment” or “offensive” can leave students and
faculty wondering what’s acceptable to say and what is not. (Majeed) Finally,
limiting free speech and civil discourse effectively diminishes important social and
political discourse. (Majeed) According to Supreme Court precedence, contentious
political discourse receives maximum protection under the first amendment.
(Schweitzer) If universities write and apply these policies in an overbroad manner,
they are not only harming the student’s/faculties education development, they are
infringing on their constitutionally protected right to speak their mind. (Majeed)
Outside of slander, libel, and fraudulent representation, strict requirements need to
be met before any speech, no matter how inflammatory or hateful, can be silenced
or punished. (Schweiter)
Stefan Linge
Political Science 499
Question: Is there evidence of ambiguous language in college universities anti-
harassment/discrimination policies, and does it have an impact on open and
unabated civil discourse?
Method: A text analysis will be done on one policy from one college university from
each of the fifty states. The universities will be picked at random. (In the case of
limited options, the first school with a defined anti-discrimination/peer harassment
policy will be analyzed.) There will be no focus on states lacking a school with a
defined policy, or a policy that doesn’t yield any results. The terms that will be coded
for are terms found in court cases surrounding the topic, phrases that research has
shown to lead to the framework of civil discourse breaking down, and words that
could be interpreted as ambiguous or having no definitive definition. (I will also be
coding for interesting terms and ways to word things.)
The terms are:
Indignity: treatment that causes one to feel shame or loss to one’s dignity or
feelings. (Dignity)
Insensitive: lacking feeling or tact (Sensitive, Insensitivity, sensitivity)
Antagonize: hostile; unfriendly. (Antagonistic)
Offensive: Perceived to be insulting by a listener. (Offend, Offending)
Feelings: A state of consciousness, resulting from emotion, sentiment or desire.
(Personal Feelings)
Diversity: The condition of being composed of different elements. (Diverse)
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Political Science 499
Schools:
Alabama University of Alabama
Alaska University of Alaska
Arizona Arizona State University
Arkansas University of Arkansas
California USC
Colorado University of Colorado
Connecticut University of Connecticut
Delaware University of Delaware
Florida University of Miami
Georgia University of Georgia
Hawaii University of Hawaii
Idaho Boise State
Illinois University of Illinois
Indiana Ball State
Iowa University of Iowa
Kansas Kansas State
Kentucky University of Kentucky
Louisiana Mcneese
Maine Maine Maritime
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Maryland Morgan State
Massachusetts U Mass
Michigan University of Michigan
Minnesota University of Minnesota
Mississippi Mississippi State
Missouri Missouri State
Montana University of Montana
Nebraska University of Nebraska
Nevada UNLV
New Hampshire University of New Hampshire
New Jersey Rutgers University
New Mexico University of New Mexico
New York NYU
North Carolina North Carolina State University
North Dakota University of North Dakota
Ohio University of Miami
Oklahoma University of Oklahoma
Oregon Oregon State
Pennsylvania Penn State
Rhode Island University of Rhode Island
South Carolina Clemson
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South Dakota South Dakota
Tennessee University of Tennessee
Texas UT Austin
Utah University of Utah
Vermont University of Vermont
Virginia University of Virginia
Washington UW
West Virginia none
Wisconsin University of Wisconsin
Wyoming none
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Data:
Indignity/Dignity:
Missouri State University: "The University recognizes the human dignity of each
member of the Missouri State University community and believes that each member
has a responsibility to promote respect and dignity for others so that all employees
and students are free to pursue their goals in an open environment, able to
participate in the free exchange of ideas, and able to share equally in the benefits of
the University’s employment and educational opportunities."
University of Illinois: "The University is committed to the fundamental principles
of academic freedom, equality of opportunity, and human dignity."
Sensitive/Insensitive/Sensitivity/Insensitivity:
University of Iowa: "Isolated behavior of the kind described in II-14.2, which does
not rise to the level of harassment but which if repeated could rise to that level,
demonstrates insensitivity that may warrant remedial measures."
Missouri State University: "Isolated behavior of the kind described in this policy,
which does not rise to the level of discrimination or harassment to be in violation of
this policy, but which if repeated could rise to that level, demonstrates insensitivity
that may warrant remedial measures"
Oregon State University: “Acts of discrimination, harassment and insensitivity
hurt and degrade all members of the campus community whether victim,
perpetrator, or observer.”
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Political Science 499
University of Illinois: "Making yourself aware of and sensitive to issues of
discrimination and harassment is essential to creating and maintaining an
environment that benefits everyone."
University of Alabama: The conduct alleged to be harassment will be evaluated
from the perspective of a reasonable person in a similar situation and not simply the
particular sensitivity or reaction of an individual
Antagonize/Antagonistic: None
Offensive/Offending/Offend:
University of Rhode Island: "Harassment is offensive conduct directed at an
individual or group that has the effect of unreasonably interfering with an
individual’s work or academic performance or creating a hostile environment."
Mississippi State University: "so severe or pervasive, and objectively offensive
that it unreasonably interferes with the victim’s ability to participate in or to realize
the intended benefits of an institutional activity, opportunity, or resource,
unreasonably interferes with the victim’s work or living environment, or deprives
the victim of some other protected right. "
Morgan State University: "Discrimination includes conduct (oral, written, graphic,
or physical) directed against any person or group of persons because of race, color,
national origin, religion, sex, sexual orientation, age, marital status or disability and
that has the purpose or reasonably foreseeable effect of creating an offensive,
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Political Science 499
demeaning, intimidating, or hostile environment for that person or group of
persons."
Maine Maritime Academy: “Offensive Jokes”
University of Virginia: "Harassment: Unwelcome conduct directed against a person
based on one or more of that person’s protected characteristics or statuses, which
conduct is so severe or pervasive that it interferes with an individual’s employment,
academic performance or participation in University programs or activities, and
creates a working, learning, program or activity environment that a reasonable
person would find intimidating, hostile or offensive. "
Missouri State University: Harassment may include, "Discussion in an
instructional setting of controversial or even offensive material that is relevant to
the subject matter being taught”
• "In some instances, innuendo or other suggestive, offensive or derogatory
comments or jokes about sex, gender-specific traits, or any basis not related to the
applicable education requirements for students or the applicable job requirements
for employees.”
• “Displaying of offensive material or objects”
New York University: "Offensive or degrading remarks, verbal abuse, or other
hostile behavior such as insulting, teasing, mocking, degrading or ridiculing another
person or group; "
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Political Science 499
University of Michigan: "has the purpose or effect of unreasonably interfering with
an individual’s employment or educational performance or creating an intimidating,
hostile, offensive, or abusive environment for that individual’s employment,
education, living environment, or participation in a University activity.”
Boise State University: "Racial Harassment: Racial harassment is conduct directed
toward another person (or identifiable group of persons) on the basis of race, color,
national origin, or ancestry that has the purpose or effect of unreasonably
interfering with an individual's work or academic performance or creating an
intimidating, hostile, or offensive environment for that individual's work, education,
or participation in a university activity. The conduct may be words, gestures, or
actions. "
• "Harassment is conduct towards another person or identifiable group of
persons including, but not limited to, unwelcome comments or other conduct that
unreasonably interferes with an individual's work or academic performance or
creates an intimidating, hostile, or offensive environment for that individual's work,
education, or participation in a university activity"
University of Kentucky: Harassment may include;
• "The conduct is sufficiently severe, pervasive or persistent to interfere with
an individual’s work, academic or program participation, or creates an environment
that a reasonable person would consider intimidating, hostile, or offensive."
• “Offensive jokes, slurs, epithets, or name calling”
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Political Science 499
• “Offensive objects or pictures”
Kansas State University: "creating an intimidating, hostile, or offensive work
environment or on-campus housing environment for the person(s); or (b)
unreasonably interfering with the work, or on-campus housing, of the person(s);
and (2) is sufficiently severe or pervasive that it alters the terms, conditions, or
privileges of a person's employment or use of on-campus housing. "
University of Georgia: “Such conduct creates or has the intention of creating an
intimidating, hostile, or offensive working and/or learning environment.”
University of Colorado: "Unwelcome conduct by an individual(s) against another
individual based upon her/his Protected Class that is sufficiently severe or
pervasive that it alters the conditions of education or employment and creates an
environment that a reasonable person would find intimidating, hostile or offensive."
University of Southern California: "Such conduct has the purpose or effect of
interfering with an individual's work or academic performance, or creating an
intimidating, hostile, offensive or otherwise adverse working or learning
environment."
• "Harassment—Physical or verbal hostility, or any unwelcome or offensive
conduct or communication, directed toward someone or toward a group of
individuals, because of their protected category status"
University of Alabama: “An isolated incident of hostile behavior, although
offensive, usually will not be sufficient to establish a claim of illegal harassment. For
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Political Science 499
example, generally, a single sexual joke, offensive epithet, or request for a date does
not constitute sexual harassment; however, being subjected to such jokes, epithets
or requests repeatedly may constitute sexual harassment.”
Feelings/Personal Feelings:
University of Alabama: “The University encourages students, faculty, and
staff to express freely, responsibly, and in an orderly way opinions and feelings
about any problem or complaint of harassment.”
Diversity/Diverse:
University of Oklahoma: "Diversity is one of the strengths of our society as
well as one of the hallmarks of a great university. The University supports diversity
and is committed to maintaining employment and educational settings that are
multicultural, multiracial, multiethnic, and all-inclusive. Respecting differences is
one of the University’s missions. "
University of Illinois: "The overall goal of our campus is to serve as an
influential lesson for students, faculty, staff and visitors, in order to show how a
diverse and all-inclusive society can be both functional and successful.”
"The University is deeply committed to providing its faculty, staff, students and
visitors with a working and learning environment that is diverse, inclusive, and
respectful."
Interesting Statements:
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Political Science 499
UT Austin: "Findings will be based on the totality of circumstances
surrounding the conduct complained of, including but not limited to: the context of
that conduct, its severity, frequency, whether it was physically threatening,
humiliating, or was simply offensive in nature."
Clemson: "Clemson University does not discriminate against any individual
or group of individuals on the basis of age, color, disability, gender, national origin,
race, religion, sexual orientation or veteran's status or genetric information."
Rutgers: "Rutgers University prohibits discrimination and harassment based
on sex, race, religion, color, national origin, ancestry, age, sex, sexual orientation,
gender identity and expression, disability, genetic information, atypical hereditary
cellular or blood trait, marital status, civil union status, domestic partnership status,
military service, veteran status, or any other category protected by law"
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Political Science 499
Analysis/Findings
The Supreme Court has generally held that content-based speech restrictions
are permissible if and only if they are tailored to a specific government interest.
(Volokh) After examining schools from all corners of the United States it’s evident
there are some policies that wouldn’t pass even the most lax judicial litmus test.
For example, Missouri State University at one part describes harassment as
"Discussion in an instructional setting of controversial or even offensive material
that is relevant to the subject matter being taught” If people aren’t ever exposed to
material they may deem offensive or politically correct, this problem will only get
exponentially worse with time. The objective here isn’t to classify these terms as
categorically false, but to examine the context and see if there’s a better, less
ambiguous way to say the same thing. The problem with ambiguity in the rules is,
with no defined line between right and wrong, they can be used to suppress
important speech and civil discourse. Policies that mandate freedom from offensive
jokes, pictures, controversial material, ridiculing ect, have no place on college
campuses.
The issue with using terms such as “insensitivity” to describe harassment is,
with no exact definition of right and wrong, people can use their own bias to either
agree or disagree with the complaint. For example, if a conservative student claims a
liberal student is harassing them, with no litmus test, the outcome is probably going
to be swayed by the administrators own personal bias.
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Political Science 499
There are plenty of possible legal remedies to this issue, but that’s not the
objective here. There are three distinct ways to address this problem that don’t
involve going to court. Schools should rid these policies of all ambiguous terms,
mandate classes on perspective taking, and not consider student evaluations when
promoting faculty.
Universities harassment policies should only outlaw
harassment/discrimination on the basis of concrete characteristics. Ethnicity, sexual
orientation, race, sex, age, and political affiliation are all great examples. Terms such
as insensitivity, offensive, diversity, and dignity should all be removed at once. This
would open the floodgates to widespread bipartisan civil discourse.
Another way to help this issue is to mandate classes on perspective taking.
This doesn’t have to be a semester long course; it could potentially include short
online courses, workshops, and or focus groups. This would show students and
faculty that the university is serious about including everyone and would remove
fears of backlash. It would also give people great tools to be successful and return
civility to campus.
A third idea is to remove student evaluations from consideration when
promoting teachers. Doing so would allow teachers to promote ideas and
discussions that may be deemed controversial without fears of harming their
careers. There’s plenty of other ways to evaluate teachers without impeding the
promotion or discussion of important social and political issues.
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Political Science 499
In conclusion, it’s fairly evident that ambiguous language exists in
universities harassment policies. Reforming these policies would set a definitive line
between what’s acceptable and what’s wrong and would open the gates to
widespread bipartisan civil discourse.
Works Cited
1. Khaja , Khadija, Daniel Griffith , Kathy Grove, and Ian McIntosh .
"Discovering Common Ground through Civil Discourse ." : n. pag. Web. 1
Mar. 2014.
2. Schweitzer , Thomas. "Hate Speech on Campus and the First Amendment:
Can They Be Reconciled?." Digital Commons @ Touro Law Center : n. pag.
Web. 1 Mar. 2014
3. Dey , Eric . "Engaging Diverse Viewpoints: What Is the Campus Climate for
Perspective-Taking?." Association of American Colleges and Universities :
n. pag. Web. 1 Mar. 2014.
4. Gonzalez , Mike. "Intolerance and Stanford’s Free-Expression Tax." .
National Review Online , 1 Jan. 2014. Web. 1 Mar. 2014.
<http://www.nationalreview.com/corner/373740/intolerance-and-
stanfords-free-expression-tax-mike-gonzalez>.
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Political Science 499
5. Majeed , Azhar. "The Misapplication of Peer Harassment Law on College
and University Campuses and the Loss of Student Speech Rights." FIRE,
Foundation for Individual Rights in Education: n. pag. Web. 1 Jan. 2014.
6. Volokh, Eugene. "Freedom of Speech, Permissible Tailoring and
Transcending Strict Scrutiny." : n. pag. Web. 1 Apr. 2014.