July 7th, 2011
When FIRE writes to universities expressing our concerns about policies restricting campus speech, we ideally hope to receive a response expressing the university’s willingness to revise those policies that violate the First Amendment or, in the case of private institutions, the very promises of free expression made by those schools. Short of that, we at least hope to receive a response acknowledging our free speech concerns and stating that the university will look into the matter further.
In the case of Macomb Community College (MCC) in Michigan, however, we have received neither. FIRE has written MCC twice in recent months, with nary a response to either letter. Our letters concerned two basic issues: one, a civility statement sent by the MCC administration to all students, and two, MCC’s already existing speech code, a red-light policy that restricts students’ speech rights in several respects.
As we wrote in our first letter, dated March 9, our concern was first raised by a January 8, 2011, memorandum sent to all MCC students by Associate Vice President for Student and Community Services Geary M. Maiuri, titled “Student Civility at Macomb Community College.” This memorandum stated, in relevant part:
It is critical for you to know and understand some of the things we at Macomb Community College feel are important and what we expect of you as a Macomb College student.
It is important that you have a serious attitude toward learning and a respectful approach to dealing with situations. Appropriate behavior is required, and Macomb students should exhibit respect toward fellow students and staff. We ask you to follow faculty and staff directives, refrain from the use of foul language, and not to create disturbances or threats that would otherwise disrupt the learning or office environment. It is important for you when on campus, to exhibit professionalism and collegiate behavior. We appreciate diversity, and expect our students to show respect toward diversity. All of us want to attend school at a safe campus, so we encourage you to report any dangerous or suspicious behavior.
As a college student, we expect that you will understand and adhere to college polices and laws. The College’s Handbook on Rights and Responsibilities outlines the actions that will be taken if students do not adhere to college rules and regulations.
In our March 9 letter we laid out the many problems with this statement, if indeed it represents official policy at MCC under which students potentially face sanction and punishment. First, the statement asks that students “refrain from the use of foul language” despite the fact that profanity is largely protected and would need to be accompanied by other, unprotected speech or conduct (or take place in unique circumstances) to be removed from First Amendment protection. Like it or not, profanity may not be constitutionally banned at a public college simply because some find it offensive or distasteful (as another community college, Hinds Community College in Mississippi, learned in the case of Isaac Rosenbloom). The United States Supreme Court’s famous pronouncement that “one man’s vulgarity is another’s lyric” in Cohen v. California, 403 U.S. 15 (1971), a decision overturning the conviction of a man who wore a jacket bearing the words “Fuck the Draft” into a courthouse, is particularly apt here.
Additionally, MCC’s memorandum states that students should not create “disturbances.” As we again pointed out, it is one thing to prohibit conduct that truly interferes with the educational process or the proper functioning of the college; it is quite another to place a vague, unsettled ban on any “disturbance” created by student expression. The airing of one’s views on any number of hot-button social and political topics may “disturb” another person in the sense of agitating or angering them, yet that alone is not a sound basis for restricting such expression—indeed, the college campus exists in large part to encourage and allow for this type of open debate and discussion. MCC’s statement also does not provide any explanation or illustration of what constitutes a “disturbance” in the eyes of its administration, giving students little notice of the speech that is potentially subject to punishment (and giving the MCC administration quite a bit of discretion in terms of enforcing the policy). This creates the further harm of a chilling effect on campus discourse, as most students will refrain from saying anything that might offend a fellow student rather than risk being charged with a violation of this provision. MCC must take a hard look at this provision, in order to limit its reach to true, actionable disruptions of the educational environment.
The MCC memorandum further states that students “should exhibit respect toward fellow students and staff” and that the college “expect[s] our students to show respect toward diversity.” While perhaps well-intentioned, the requirement of “respect” in all forms of student speech and interaction goes too far from a free speech perspective, as the First Amendment protects many types of disrespectful and rude expression. In fact, I might say that the First Amendment exists precisely to protect speech which others disagree with and wish to censor, as opposed to the types of polite or tame speech with which most people would be comfortable. The term “respect,” left alone and undefined, is also open to interpretation, because what is perceived as disrespectful by one person may be perfectly respectful to another. Because the application of this term is as much a matter of taste as anything else, this provision, like the one on “disturbances,” leaves students unclear about their expressive rights and gives MCC administrators too much discretion when it comes to enforcement and punishment.
Given these doctrinal flaws, we advised MCC that if it wished to encourage students to follow certain values—as opposed to requiring students to subscribe to these values, under pain of punishment—then it must make abundantly clear that the provisions of the memorandum on Student Civility at Macomb Community College are strictly aspirational. Like any college or university, public or private, MCC is well within its rights to recommend that students conduct themselves in a certain way on campus. By leaving ambiguous whether students could face punishment for violating the terms of the Student Civility statement, however, MCC has placed its students’ First Amendment rights in peril.
That’s not all, unfortunately. As we pointed out in our letters, MCC also has at least one policy on the books that clearly and substantially violates its students’ free speech rights. MCC’s “Acceptable Use of Information Technology Resources” policy reads, in pertinent part:
The following behaviors are prohibited while using College information technology resources, including computers and networks owned or operated by Macomb Community College, or to which Macomb Community College is connected…. Sending chain letters, junk mail, “spam,” “flaming,” “mailbombs,” or other similar types of broadcast messages; Sending a message to more than ten (10) internal or external email addresses except as required to conduct College business; … Sending messages that are malicious or that a reasonable person would find to be harassing or threatening ….
This policy is problematic, first of all, because it prohibits students from sending “chain letters” or sending emails to more than ten individuals unless they are “conduct[ing] College business.” It is difficult to imagine what interest on the part of MCC is served by these restrictions. Sending chain emails, in and of itself, does not in any real way disrupt the educational process or the proper functioning of a university’s IT services, and indeed, this ban would seem to apply to solicited emails and replies as much as it does to unsolicited messages. The limit on sending emails to more than ten people immediately brings to mind the case of Kara Spencer at Michigan State University. Spencer, loyal Torch readers may recall, was found guilty of violating Michigan State’s spamming policy because she emailed a carefully selected group of faculty about proposed changes to the school’s academic calendar (on behalf of a committee of faculty, students, and administrators, no less). It is easy to imagine another Kara Spencer case happening at MCC under the Acceptable Use policy, all because of a student’s constitutionally protected expression. Nor does the exception made for “conduct[ing] College business” save this policy, as many matters that go beyond official school business are worthy of robust dialogue on a college campus—the discussion of any number of social, political, and cultural matters of public significance among them.
Finally, the Acceptable Use policy bans sending “malicious” messages. Like some of the provisions of the Student Civility memorandum, this encompasses a great deal of speech that is unpleasant yet perfectly entitled to constitutional protection. The term “malicious” is also left undefined, leaving students to guess at what an administrator might deem to be punishable. If you send a “malicious” email taking issue with a fellow student who you think is racist, for example, should you be punished? Once again, the vagueness and extensive reach of this provision places the expressive rights of MCC students in peril.
We hope that the administration of Macomb Community College is mindful of the First Amendment problems presented by its Student Civility memorandum and its red-light policy on Acceptable Use. While we regret that MCC thus far has not acknowledged or responded to our letters, FIRE believes that the changes needed to improve these policies, and thereby restore MCC students’ full First Amendment rights on campus, are not difficult to make. We will continue to stay after it, and we will update Torch readers on developments in this matter.