Bobby Ramkissoon
Dylynn Lasky
Contributing Writers
The state of free speech in higher education is a topic of discussion that has always occupied national attention. In recent years, incidents of free speech violations on campuses have proliferated across the country, as has the debate over the nature and extent of the problem. The College of Wooster occupies a unique space in this debate insofar as we are a private institution and thus not legally bound to the First Amendment.
Any criticisms of the College’s treatment of free speech can only be to point out internal contradictions as external concerns can be largely ignored (or acknowledged) through administrative discretion. In reviewing The Scot’s Key such contradictions arise as the College promises the “robust protection of freedom of expression and inquiry” and “the right to speak freely” while maintaining several policies that directly infringe on these promises.
In the interest of time, this article will focus exclusively on the College’s “Bias Related Harassment Policy” as it is the most concerning yet quickly rectifiable. The policy states that peer hostile-environment harassment is any conduct that is “sufficiently severe, pervasive, or objectively offensive.” This formulation is in accordance with the Supreme Court of the United States decision Davis v. Monroe County Board of Education. In this decision, Justice Sandra Day O’ Connor defined harassment in an educational setting as conduct that is “so severe, pervasive, and objectively offensive.” However, Wooster’s policy makes an almost negligible distinction. Instead of utilizing the conjunction “and,” the College opted for the disjunction “or.”
Under the conjunctive list determined in Davis, all conditions are required for certain conduct to be considered harassment: severe and pervasive and objectively offensive. The “and” signals that severity or pervasiveness alone does not warrant administrative action. Such is the case in the well-known constitutional phrases “cruel and unusual punishment” (U.S. Const. amend. VIII) as well as “necessary and proper” (U.S. Const. art. I, § 3.). Alternatively, under Wooster’s disjunctive list, at least one of the three conditions is required, but one (or more) of the three satisfies the requirement. That is, the conduct must only be severe or pervasive, or objectively offensive to be punishable.
The use of this disjunctive “or” threatens free speech on campus in that it could be abused to suppress unfavorable speech that would otherwise not rise to the level of harassment under First Amendment standards. This could include subjectively offensive jokes stated with enough frequency, which lack both severity and objective offensiveness.
The impetus for the College’s distinction from Davis is likely rooted in a legitimate concern for creating a more inclusive campus environment. However, this concern need not come at the expense of free speech. As The Scot’s Key rightfully acknowledges, the right to speak freely is also an integral part of enabling an inclusive campus environment. The College should strive to emphasize its commitment to free speech with the same vigor it does other campus concerns.
For the reasons stated above, we respectfully urge The College of Wooster to revise its “Bias Harassment Policy” to require conduct to be “severe, pervasive, and objectively offensive” to warrant administrative punishment.