No ‘green light’ for KU: National report says university has policies that threaten freedom of speech

photo by: Associated Press

A bus passes in front of Strong Hall on Nov. 16, 2015, on the University of Kansas campus. (AP Photo/Orlin Wagner)

A national nonprofit dedicated to protecting freedom of speech at universities found that the University of Kansas has policies that threaten the First Amendment right.

The Foundation for Individual Rights in Education (FIRE) released a report on Wednesday in which it rated 471 private and public institutions with red, yellow, or green lights, corresponding to the institution’s protection of free speech.

A red-light institution has at least one policy that clearly and substantially restricts freedom of speech. A yellow-light institution has policies that could be interpreted to suppress speech or clearly restricts narrow categories of speech. Green light institutions have policies that do not seriously threaten campus expression.

KU, like the majority of universities surveyed for the report, received a yellow-light rating.

Of the 471 institutions surveyed, 24.2% received a red light, 63.9% received a yellow light, and 10.6% received a green light. Additionally, 366 of the 471 institutions surveyed were public. FIRE focuses on public universities as they are legally bound to protect First Amendment rights, the report states.

KU received yellow-light ratings on five of its speech codes, or regulations on speech. Among KU’s speech codes, FIRE took issue with some policies on harassment, bullying, posting and distribution.

Laura Beltz, one of the lead writers of the report, said many of the issues within KU’s speech codes were “pretty specific.” A few issues within KU’s harassment and bullying policies were that they lacked objectivity.

KU’s racial discrimination and harassment brochure states that racial and ethnic harassment is, in part, “behavior that has the purpose or effect of creating an intimidating, hostile, or offensive work or educational environment for an individual or group.”

Beltz said the policy would be improved if it included a phrase such as “from a reasonable person’s viewpoint,” which would add objectivity. She said that would indicate “it’s not just from that individual victim’s perspective.” Objectivity means the conduct must be offensive both from the subjective view of the victim and from the perspective of a reasonable person in that victim’s shoes, Beltz said.

In a different harassment policy in the housing handbook, Beltz said an “or” needed to be changed to an “and.” The policy reads that harassing behavior is any comment, action or behavior that is “so severe, pervasive, discriminatory, or objectively offensive that it reasonably interferes with the ability of a resident to fully participate in the services, activities, and privileges of the residential community.” By using “or” instead of “and,” KU does not require harassing behavior to be defined as objectively offensive.

Beltz also said FIRE thought there should be places on campus where students could post things without prior approval. This was in response to the same KU housing handbook that reads: “Posting materials is prohibited without approval by the complex director or KU Student Housing.”

When asked if its rating as a yellow-light institution might cause KU to reconsider its policies, university spokeswoman Erinn Barcomb-Peterson said:

“Free speech is essential to the functioning of a university. KU is a marketplace of ideas, and although we understand that some disagree with particular kinds of speech, we strongly affirm the right to express it.”

KU did receive two green lights in its code of student rights and responsibilities: one for making a commitment to free expression and another for stating the right to orderly and peacefully protest.

Examples of yellow-light policies from other institutions include Indiana University Bloomington’s prohibition of “offensive” language or symbols in the residence halls, “a policy that would earn a red light rating if its ban extended to the entire campus,” the report states. It continues, “At Harvard University, a yellow light policy forces students to submit an application before distributing written materials anywhere on university property.”

Five Kansas institutions are included in the survey. KU, Fort Hays State University and Pittsburg State University all received yellow-light ratings. Wichita State University received a red-light rating because it has one policy related to sexual harassment that FIRE considered too broad and gave a red rating.

Under WSU’s definition of sexual harassment, Beltz said that “a single off-color joke” could fall under the umbrella of unwelcome conduct of a sexual nature.

“(But) under the Supreme Court’s definition, that joke would have to be so severe, pervasive, and objectively offensive that the victim would be effectively denied equal access to university opportunities, like living in the residence hall or going to class — a single joke likely would not meet that standard,” Beltz wrote in an email.

Beltz also said WSU’s definition did not include objectivity.

“To gain compliance with the First Amendment, the Wichita State policy must be revised so that it better tracks that Supreme Court standard and its critical components,” she wrote.

Kansas State University was the only Kansas institution — and one of only 50 institutions nationwide — to receive a green-light rating.

Beltz said K-State’s policies included wording that requires evaluation of the situation from both subjective and objective viewpoints. Additionally, its harassment policies specify that the harassing conduct must not only interfere substantially with another person but also must be done intentionally.

The FIRE report states that this is the 12th year in a row that the percentage of institutions with red-light ratings has decreased. Since 2009, red-light schools have declined by exactly 50%. Yellow-light ratings, however, have increased every year since 2009.

“This inverse relationship is caused when colleges revise all of their red light policies as a way of doing just enough to earn a yellow light rating, or for some other reason fail to address the yellow light policies that were also on the books,” the report states. “FIRE’s yellow light rating must not be mistaken as an indication that a policy’s enforcement will result in a less significant free speech violation than the enforcement of a red light policy.”


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