Furman's 'Act of Intolerance' Policy Earns Poor Rating from FIRE
Furman alumna shares how the University's student handbook may violate protected First Amendment rights in new analysis by the Foundation for Individual Rights and Expression (FIRE).
Furman’s Statement on Freedom of Inquiry and Expression claims that the university “unequivocally affirms a commitment to free inquiry and free expression.” Nevertheless, Furman continues to maintain policies that restrict speech that is protected under First Amendment standards.
We now have a deep dive into one of those policies by Furman graduate Mary Griffin ‘14, a Senior Program Council for Policy Reform at the Foundation for Individual Rights and Expression (FIRE). The Furman Free Speech Alliance calls upon President Davis to revise this policy on acts of intolerance and bring it in line with the First Amendment.
Below is Griffin’s breakdown of this policy, which was prepared especially for the Furman Free Speech Alliance.
The “Act of Intolerance” policy, found in the Student Conduct Code earns a “yellow light” rating from FIRE because the broad definition of “act[s] of intolerance” in this policy permits the investigation and potential punishment of speech that is protected under First Amendment standards.
The Act of Intolerance policy is problematic for several reasons. First, the university must refine its definition of what it considers an “act of intolerance” to ensure it does not include speech that would be protected under First Amendment standards. Furman would be well advised to replace its current definition to only ban speech that violates the law, such harassment or discrimination, and only solicit reports of such behavior. Doing so would allow Furman to address the type of unlawful behavior that prevents students from being able to obtain an education, while at the same time protecting the free exchange of ideas on campus.
The Supreme Court of the United States’ governing standard for peer hostile environment harassment is articulated in Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). The Court held that peer 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 the current policy language states that some acts of intolerance may rise to the level of harassment or a hate crime, the permissive “may” leaves open the possibility that even speech that does not rise to this level could be subject to punishment by the administration.
Further, the university’s overly broad definition of acts of intolerance permits significant administrative discretion. The policy states that an act of intolerance is “any conduct that serves no scholarly purpose appropriate to the educational experience and demonstrates bias against others” that causes “alienation...or other harm” to a member of the Furman community. Given the breadth of speech protected under First Amendment standards that could fall under this definition, students could easily be subject to punishment for speech that may be subjectively offensive, but protected under this standard. Additionally, without defining the bounds of the resulting “alienation” or “harm,” nearly any reported incident could land a student in trouble or under investigation.
FIRE’s overview of this and other restrictive speech policies at Furman can be found here.
Thank you for this!