San Diego universities criticized for ambiguous free speech policies

Three San Diego County universities have been flagged by a free speech advocacy group, which warned that the campuses had policies too subjective and ambiguous to meet 1st Amendment standards.

The Foundation for Individual Rights in Education, a Philadelphia-based group commonly referred to as FIRE, gave public universities San Diego State, UC San Diego and Cal State San Marcos “yellow light” ratings, meaning the institutions have “at least one ambiguous policy that too easily encourages administrative abuse and arbitrary application,” according to the organization’s website.

FIRE assessed the speech policies of 471 U.S. colleges, finding 64% deserved “yellow light” ratings of warning; 25% received the lowest rating, a “red light”; and 11% were considered OK, with “green light” ratings.

Although none of the San Diego area schools explicitly prohibit free speech, their policies are too subjective to earn a “green light” rating, said FIRE Senior Program Manager Laura Beltz.

She said many schools didn’t know their policies were problematic. “We’re looking for these policies to be revised so they can meet those 1st Amendment standards,” Beltz said. “A lot of these schools don’t even know these policies are out there.”

For instance, UC San Diego and the others had problems with policies designed to curb harassment on campus, she said.

UC San Diego’s Office for the Prevention of Harassment and Discrimination was flagged for a portion of its Frequently Asked Questions web page. The section includes examples of things that would be considered harassment, such as “anti-Semitic or Islamophobic graffiti” or “repeatedly sending unwelcome emails, text messages or photos of a sexual nature.”

Beltz said these examples might not meet the U.S. Constitutional standard for harassment on their own. The Constitution states harassment must be “severe, pervasive and objectively offensive,” she said.

Belz said UC San Diego should clarify its policy. She said the policy lacked the “objectively offensive” component that the Constitution uses to classify harassment. She also said the university’s use of the phrase “and/or” in “severe and/or pervasive” in its policy would be incorrect because harassment must be severe and pervasive, not one or the other.

Although the policy is only off by two words, institutions can never be too careful, said David Loy, legal director of the San Diego American Civil Liberties Union.

Misapplication of ambiguous policies is a real issue, he said, where vagueness in policy wording gives administrators too much leeway to use campus policies to prohibit protected forms of speech.

“The problem is having something on paper that people who are not lawyers wouldn’t understand,” Loy said.

SDSU had seven policies flagged, most of which pertain to student conduct and sexual harassment.

One of those SDSU policies prohibits “abusive physical and verbal behavior, and threats of physical abuse,” within campus residence halls.

Beltz said the issue had to do with the term “abusive,” which has been ruled by the Supreme Court as being too vague and potentially encompassing protected speech. The 1972 case, Gooding vs. Wilson, ruled a Georgia statue prohibiting “abusive language” was too broad to meet 1st Amendment standards.

“Obviously, colleges need to have harassment policies and they need to respond to the harassment of students,” Beltz said. “It’s that this policy is written so broadly that it restricts protected speech.”

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