FIRE Gives Furman's Latest Non-Discrimination Policy a "Yellow Light"

Furman should revise one of its latest policies to fulfill its unequivocal commitment to free inquiry and free expression.

Our team at the Furman Free Speech Alliance is working on an important Data Din for November, which we look forward to publishing next week.

In the meantime, we want to present you with this special report from the Foundation for Individual Rights and Expression (FIRE), which analyzes the new “non-discrimination” policy that Furman released earlier this fall.

Read their analysis below:

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Furman’s non-discrimination policy earns a “yellow light” rating from FIRE because the definition of harassment does not comport with the relevant legal standard and the accompanying FAQ invites uncertainty about the parameters of protected expression.

First, the definition of discriminatory harassment does not track the standard set forth by the Supreme Court of the United States in Davis v. Monroe County Board of Education. The Davis Court made clear that student-on-student (or peer) hostile environment harassment in the educational setting is conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.”

As the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this issue. Although Davis addressed sexual harassment, FIRE recommends adopting this standard for all peer harassment, including harassment based on race, which could be one protected class the university intends to prevent discriminatory behavior against. FIRE maintains this recommendation because several courts have indicated that Title VI claims should be adjudicated under a legal framework similar to the one developed for Title IX claims.

In contrast, Furman’s policy defines harassment as unwelcome conduct that is “both subjectively and objectively offensive and is so severe, persistent, or pervasive that it: (a) creates an environment that a reasonable person would consider hostile, intimidating, offensive or abusive; (b) has the purpose or effect of unreasonably interfering with an individual’s work or academic performance; or (c) otherwise adversely limits an individual’s employment or participation in a University program or activity.” At the outset, Furman’s policy prohibits conduct that is “severe, persistent, or pervasive,” diverging from the Court’s “severe, pervasive” formulation. Although subtle, punishing conduct that is severe or pervasive, even while maintaining the objective offense prong, threatens speech that would otherwise be protected under First Amendment standards.

For example, consider the possibility of a classroom discussion about racial profiling and policing which spills out into the hallway afterward. For several days, students argue about the merits of this approach, with several students taking the position that racial profiling is wise public policy and must be implemented. This discussion could become punishable under the current policy if a single student feels that this speech “adversely limits” access to their education by, for example, making them feel uncomfortable. As a result, even allowing objectively offensive speech—which might include the idea that racial profiling in policing is good public policy—that is either “severe” or “pervasive,” but not both, to be actionable would result in the punishment of protected expression.

Further, by banning conduct that “has the purpose or effect of unreasonably interfering” with an individual’s work or academic performance, the policy makes punishable conduct that was intended as harassing, but that does not actually have a harassing effect. This Title VII standard, which applies to harassment in the workplace, is inappropriate as applied to student-on-student harassment in the academic environment.

A final, universal defect of this policy is that it conflates peer and employment harassment standards. FIRE recommends maintaining separate policies to govern student and employee (including student employee) misconduct to accurately track the legal standards governing these two different environments. At present, Furman’s Student Conduct Code reproduces this policy within its pages, inclusive of the inapplicable references to employment. These references should be removed.

Aside from the issues with the operative definition of discriminatory harassment, the information following the policy text does not inspire confidence that the administration will uphold protected expression.

For example, the tab that addresses the question “[w]hen does speech become a policy violation?” provides an illustrative hypothetical. That provision states the university may intervene when expression “[a]dvocates violence.” While the university must take action against unprotected conduct or speech such as incitement or true threats, the First Amendment protects abstract advocacy of violence, including calls for genocide that continue to be a flashpoint in the ongoing conversation about the Israel-Hamas war. The phrasing of this response, however, indicates the university may “intervene” even if the expression at issue is protected under First Amendment standards.

This tab also states that “[y]ou are encouraged to speak freely—but also expected to engage responsibly.” While it is certainly laudable to encourage students to engage in free expression in a responsible manner, stating they are “expected” to do so indicates the university may attempt to enforce this amorphous requirement. The university should simply encourage students to engage in respectful, responsible dialogue, not demand it.

Furman’s Non-Discrimination and Non-Harassment Policy, and the university’s overall red light rating from FIRE, continue to be out of step with Furman’s broad commitment to freedom of expression in its Statement on Freedom of Inquiry and Expression.

The university must revise these policies to fulfill its “unequivocal[]…commitment to free inquiry and free expression” and ensure all Furman students have the opportunity to “speak, write, inquire, listen, challenge, and learn through exposure to a spectrum of ideas.”