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Better Not Denigrate Religions / Disabilities / Veteran Status / Sexual Orientation / Etc. at Your University:

I just looked at Brandeis's "harassment"-based speech code, which is available at the FIRE site; here's what it threatens to punish students (not just teachers) for saying (I excerpt the most troubling parts) -- and unfortunately such broad codes, drawn from hostile work environment law, are present at many universities:

[V]iolations of this policy will not be tolerated and may result in corrective actions up to and including dismissal from school ....

This policy applies to all Brandeis students, faculty and staff....

Harassment, whether sexual or based on an individual's protected class status (of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by law) is a form of discrimination and will not be tolerated. It is regarded as harassment when conduct: has the purpose or effect of unreasonably interfering with a person's education or work performance by creating an intimidating, hostile or offensive environment in which to work, study or live ....

Harassment may occur between supervisor/supervisee, faculty/student, within peer groups, or with third parties.

Examples Of Harassment

Depending on the circumstances, conduct which may constitute sexual harassment includes but is not limited to: ...

• ... [D]isplaying of sexually suggestive objects, pictures, cartoons or posters, suggestive or obscene letters or emails, notes, invitations or gifts;
• Making or using derogatory comments, epithets, slurs or jokes with a sexual content; ...
• Displaying, sending, forwarding, downloading or otherwise distributing sexual materials via the internet, computer or email ...

Examples of Other Forms of Harassment/Discrimination

There are other forms of harassment/discrimination as well that create a hostile educational or work environment on the basis of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by federal or state law (together, "protected class status").

Depending on the circumstances, the following are examples of behaviors that may constitute harassment/discrimination under this policy. This is not an exhaustive list:

• Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual's or group's protected class status;
• Epithets or slurs based on an individual's or group's protected class status;
• Objects, posters, cartoons or pictures which make fun of, denigrate or are based on an individual's or group's protected class status whether directed to an individual, placed on University premises or displayed or circulated on campus;
• Displaying, sending, forwarding, downloading or otherwise distributing materials via the internet, computer, or email that make fun of, denigrate or are based on protected class status;
• Other verbal or physical conduct that denigrates or shows hostility or aversion towards an individual or group based on protected class status....

The University may take action on conduct that it deems to be inappropriate, regardless of whether it rises to the level of a violation of law.

These are not limited to statements said to a particular offended person. (In fact, one provision that I don't include above covers "Unwelcome sexual conduct toward an individual, including offensive comments, touching or sexual propositions"; no such limitation appears in the items I quote above.) Nor is there any exception for statements that are part of political, social, or religious debate, or for that matter of friendly conversation that happens to be overheard by others.

So if you distribute materials that make fun of Scientologists (which are based on "a protected class status," namely religion), and this is found to "unreasonably interfer[e] with a person's education ... by creating ... [an] offensive environment in which to work, study or live"), you're guilty. Likewise if you denigrate or show hostility towards fundamentalist Christians, or extremist Muslims, or veterans, or gays, or people who have certain disabilities (or for that matter certain "genetic information").

Likewise if someone concludes that your "sexually suggestive" objects, pictures, or cartoons "unreasonably interfer[e] with [their] education" (for instance, because they are very offended by sexual content, and see it in the dorms often, whether on people's T-shirts or doors). Likewise if people feel such "unreasonabl[e] interfer[ence]" because they overhear people's "jokes with a sexual content" (or should that be limited just to "derogatory jokes with a sexual content").

What constitutes an "abusive or offensive" environment? When does political or religious commentary "unreasonably interfer[e] with [people's] education"? Say that someone feels genuinely upset by the fact that others have the temerity to harshly condemn fundamentalist Christianity or extremist Islam or who knows what else, whether in student newspaper articles, at demonstrations, or in overheard conversations, and finds it hard to be excited about school as a result. Does that qualify?

Of course, I quite doubt that the policy is enforced often, or evenhandedly. But it's out there whenever someone (a student, a student group, or the administration) wants to make trouble for others who express certain kinds of views. Not what we ought to have at universities that try to take free speech and academic freedom, it seems to me. But inevitable once one asserts a supposed civil right to be free from "harassment," defined to include speech (including speech not directed at the offended person) that might offend based on race, religion, sex, and the like.

Dangermouse:
Someone could really cause much abuse with these codes. The next time the aging hippie professor starts badmouthing Christians, charge him with violating the code. Hell, "coming out day" could be seen as violating the code, since it could interfere with the education of fundamentalist Muslims. Of course, the very presence of women on campus might do that also.

In practice, these codes are used to bash political conservatives, but there's no reason why they cannot fight fire with fire.
1.29.2008 7:49pm
Pol Mordreth (mail):
EV, I understand that this may seem extreme to you, but it's pretty much standard boilerplate at every company I have worked. Replace 'University' with 'Company Name' and this looks like a standard HR form. I have a beef with them at my company, but I'm neither surprised nor aghast that a University is using a boilerplate hostile work environment notice.
1.29.2008 7:58pm
Duffy Pratt (mail):
Suppose a student decided to express. Another person finds this offensive and makes a complaint against him. The student himself gets offended at the complaint, which tramps on his gender identity rights, and complains against the complainer. Are they both subject to discipline?
1.29.2008 8:06pm
Eugene Volokh (www):
Pol: I know; I've talked about such policies in the hostile work environment context (see the link in the first paragraph), and it's bad that hostile work environment law pressures companies to impose such speech restrictions. But it's especially striking when such restrictions are applied to universities as well.
1.29.2008 8:08pm
ras (mail):
So is it no longer allowed to criticize a pedophile cuz he can claim he was built that way (genetic info, disability), that he prefers it (sexual orientation), that his ancestors did it in some cultures (ancestry), that his prophet sanctioned it (religious creed)?

It'd all be laughable if it weren't so harmful.
1.29.2008 8:24pm
PersonFromPorlock:
So, if I'm an animist Native Canadian transexual disabled female Vietnam veteran at Brandeis... does anyone dare talk to me?
1.29.2008 8:29pm
ras (mail):
PersonFromPorlock,

does anyone dare talk to me?

Good point; they forgot to add "shunning or avoiding contact" to the policy. Ssshhh, I'm only half-joking.
1.29.2008 8:32pm
Hoosier:
>>Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual’s or group’s protected class status;

So the "protected class" is not simply sacrosanct, its very "status" as a "protected class" is also untouchable. Might critisim of affirmative action at the university fall under this rubric? Might everything?
1.29.2008 8:35pm
Irv Schwartz:
Hmm... If this is what happens at "historically Jewish" colleges, what might be transpiring at Brandeis' sister African-American institutions?

Anyone?
1.29.2008 8:35pm
J'hn'1:
I want to see the first student or faculty who complains about Arabic language services by Muslims.
As it is easily documentable that the Koran mandates subjugating the world "by the sword", Koranic religions are homophobic, they support suppression of women's civil rights, they tend to be rabidly antiSemetic, and the hadiths support a narrow version of human rights (oversimplification is that only Muslims are human and deserving of human rights). If such a complaint were filed, and honestly adjudicated, it should make for an easier case than this one was for this precedent to be applied to any Islamic services held oncampus (or even off of it). It wouldn't be about what was said, as that is by this standard immaterial, it would be about what might have been said.
Oh, that is right, the same rules will not apply.
After all, Western women, the LGBT community, Jews, Christians, Anglo-sphere supporters, and other assorted proclaimed next victims don't tend to riot, torch cars, and kill people that they don't agree with, so it is safe for them to get a more truncated version of speech rights. That or certain "victim" classes to be beyond following the rules the rest of us are bound by.

J'hn1
1.29.2008 8:48pm
Prof. S. (mail):

Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual’s or group’s protected class status;


So, I guess that means pretty much every joke ever then.

The worst part of these is that they are based on the subjective "offensive." This code includes "conduct [that] has the purpose or effect of unreasonably interfering with a person's education or work performance by creating an intimidating, hostile or offensive environment in which to work, study or live ....

In other words, if someone is a sensitive person (or with a known overly-sensitive group), their "work performance" may be "unreasonably interfer[ed] with" by rather inoxious comments.

Having spent two years as a consultant working with college students, I seriously wonder how the school could ever try to enforce in a neutral manner.
1.29.2008 8:49pm
Anderson (mail):
I think Brandeis should simplify matters by having an affirmative policy of what MAY be discussed. Here, I've drafted one:

1. The weather.

See? Simple and to the point.
1.29.2008 8:52pm
DeLite:
Jokes, comments or innuendoes that make fun of, denigrate or are based on an individual’s or group’s protected class status;


I wonder if such comments were permitted that we might have less strife and misunderstandings.

If your name is Latreina or LaVagina, mightn't I point out that, under the codes of suppression, people will still snigger, but this time behind your back, and you won't have a clue that you might be taken more "serious" if you changed your name to Jane or Polly?
1.29.2008 9:06pm
marbx (mail):
Prof. S: I think "Why did the chicken cross the road?" is still inoffensive... unless some of the more wacko animal rights people successfully argue that chickens are persons under this code.

Also: "Displaying, sending, forwarding, downloading or otherwise distributing sexual materials via the internet, computer or email;" does anyone else even have to be present to witness the sexual materials or other offensive material? Could someone theoretically be punished for clicking the wrong link in the privacy of their dorm room?
1.29.2008 9:12pm
Elliot123 (mail):
This is great. Viet Nam vets are a protected class, but the Viet Nam draft dodgers who became professors are not.
1.29.2008 9:21pm
Smokey:
EV:
Of course, I quite doubt that the policy is enforced often, or evenhandedly.
That's the whole point; these rules are intended to be used only against conservative, jewish, male and caucasian students.

Don't believe that? It would be very easy to do a little experiment, by arranging to have someone complain about the pervasive la raza and islamic hate speech on campus, using these same rules -- which were obviously written to assist in the prosecution of those who are perceived to be politically incorrect.

These rules are clearly intended to give assistance to the faculty members and students who routinely shout "discrimination" as a tactic, to cudgel those whom they hate simply for the views they may dare to express.
1.29.2008 9:22pm
Mr. Liberal:
Since Brandeis is a private university, I am fine with this code.

Private universities should be able to make regulations in an attempt to create a particular atmosphere that we would not accept at public university.
1.29.2008 9:25pm
Smokey:
Mr Liberal:
Since Brandeis is a private university, I am fine with this code.
Then I can inform my Eagle Scout son that you support the right of the Boy Scouts to bar homosexual scoutmasters?
1.29.2008 9:43pm
Bob from Ohio (mail):

Private universities should be able to make regulations in an attempt to create a particular atmosphere that we would not accept at public university.


How to best describe the "atmosphere" at Brandeis created by this code?

Stalinist? Cultural Revolution? Repressive? Un-American?
1.29.2008 9:43pm
wm13:
I suspect Mr. Liberal won't be answering Smokey.
1.29.2008 9:50pm
Not From Reed:
Compare with the Honor Principle at Reed College, where causing "embarrassment, discomfort and injury" is allowed as long as it's not "unnecessary." So is there such a thing as tolerable discomfort, embarrassment or injury? Of course there is. That's how we learn.
1.29.2008 9:58pm
Mr. Liberal:
Smokey,

How is this code and discrimination against homosexuals equivalent? You answer that question and I will answer your question. =)
1.29.2008 10:05pm
Sua Tremendità (mail):
How many college admnisitrators does it take to screw in a lightbulb?

They are too busy screwing students, let maintenance take care of it.
1.29.2008 10:13pm
genob:
So I guess general statements to the effect that women are oppressed or discriminated against by "men" would violate this code. Such statements would clearly offend and create a very hostile and uncomfortable environment for men, most of whom probably never had the opportunity to oppress anyone.

Hmmm. maybe this code would be a good thing after all. It would silence at least 1/3 of the women with whom I went to law school, not to mention many professors who have made careers on such "offensive" trains of thought.
1.29.2008 10:19pm
Elliot123 (mail):
It appears that one cannot call Viet Nam veterans baby killers, but one can call Iraq veterans baby killers.
1.29.2008 10:39pm
John (mail):
I assume Brandeis is not subject to any free speech requirements. As such, the only check on this is the marketplace. As long as students willingly decide to submit to this garbage, I think they are stuck with it. And they should be.
1.29.2008 10:44pm
Gaius Marius:
Talk about being void for vagueness.
1.29.2008 10:54pm
Harry Eagar (mail):
ras, I was going to ask what in the world 'genetic information' is and how you recognize it?

Is that it? Pedophile?
1.29.2008 11:51pm
theobromophile (www):
The Brandeis policy is very similar to a policy that some groups are trying to push through here. There is no requirement that the conduct be aimed at the offended individual, that the offence be rational (i.e a rational person would find it hostile or offensive), or that the offended person ask the offender to stop before sanctions occur. (The proposed policy would allow an offended student to have the offender removed the building, immediately, and without any sort of process. That is before a hearing before a "Consequences Board.")

It takes the "hostile work environment" attitude, removes any semblance of procedural or substantive protections, and applies it to academia, which, IMO, should be a bastion of free speech and discourse, where bad speech is answered by better speech. (Also, applicable to law school but not undergrad - I find it absolutely comical that those who are training to be lawyers have such sensitive and delicate feelings that they need to be protected from words they don't like. If such is the case, they really ought to find themselves another profession, preferably not a hard-charging one where language is the weapon of choice.)
1.30.2008 1:43am
common sense (www):
Elliot- Iraqi war vets fall under special veteran class, and are protected.
1.30.2008 7:06am
tckurd (mail):
I think Scientology is fair game - I don't think it's protected because it's not recognized (by tax free status) as a religion.

I will assume Brandeis no longer has a debate team.
1.30.2008 8:33am
Stacy (mail):
"How is this code and discrimination against homosexuals equivalent? You answer that question and I will answer your question. =)"

Whooosh!!!

On another note, I always thought terms like "protected class status" were only used by critics of speech codes as a (slightly) exaggerated description of the special rights conferred on anyone who can claim some kind of minority status. Very instructive to see that the actual speech code uses the same term.
1.30.2008 8:42am
PersonFromPorlock:
Anderson:

I think Brandeis should simplify matters by having an affirmative policy of what MAY be discussed. Here, I've drafted one:

1. The weather.

See? Simple and to the point.


But 'weather' can easily become 'climate', which is a religious topic. Best not talk about the weather, either. ;^)
1.30.2008 9:03am
Just Some Guy (mail):
Shame on you kiddies, you haven't figured out the weak spot in the new policy? That's right, if the Administration ignores 40 complaints about behavior offensive to Christians and whites, but disciplines a different faculty member for behavior offensive to another group, guess who is going to be writing a check with a bunch of zeros.

Drop a bunch of complaints on behavior the other way, and watch the fun when the first discipplined prof gets a payday.
1.30.2008 9:12am
JohnMc (mail) (www):
So what would the university do if they assigned an orthodox Jew, a fundamental Islamic and a Mayan fertility worshiper that uses phallic symbols to the same dorm? Has not the university just created a hazardous learning environment? And does the university arrest itself as a result?

The Mayan goes out to the quad to practice his religion phallic symbol and all. Women complain. Is the students religion protected and the women can go pound sand? What if the Mayan religious ceremony concluded with a ritual human sacrifice. Is that protected too?

That's the absurdity of all this garbage. Lesson is to shoe horn yourself into some protected class and raise as much hell as possible.
1.30.2008 9:26am
mishu (mail):
Some enterprising student should start a business helping to define other student's protected class status. If a student has trouble determining his protected class status, he could fill out a profile questionnaire. Based on the results of the questionnaire, he'd find out his protected class status.
1.30.2008 9:29am
p. rich (mail) (www):
All such codes are blatant liberal tripe written to provide their enforcers vague unlimited powers in the exercise of bias - facts, logic and freedom of speech be damned. Universities have become cesspools of "correct" thought and spawning grounds for leftist teachers and HR True Believers who spread the disease into the culture, and "academic freedom" is a sham trotted out to excuse chic radical behavior.

Ignorant animals know better than to crap in their own beds. The drooling idiots who write and selectively enforce these codes have yet to rise to the same low level of intellectual development.
1.30.2008 9:31am
capitano:

How to best describe the "atmosphere" at Brandeis created by this code?

Stalinist? Cultural Revolution? Repressive? Un-American?


Liberal Fascism
1.30.2008 9:50am
Hoosier:
>>So what would the university do if they assigned an orthodox Jew, a fundamental Islamic and a Mayan fertility worshiper that uses phallic symbols to the same dorm?

Don't sentences that begin like that usually end with " . . . walked into a bar"?
1.30.2008 9:52am
Richard Aubrey (mail):
Mucho scope for the mischievous.

It could be so much fun as to distract from study.
1.30.2008 9:53am
melk (mail):
Such silly stuff. The original formulators of the sexual harassment statutes included the power disparity concept to entrap Republican bigwigs having consensual sex with younger hotties. Then they got Clinton and Monica. Really hard to anticipate. So it will go with this lunacy.
1.30.2008 10:00am
Spartee:
""How is this code and discrimination against homosexuals equivalent? You answer that question and I will answer your question. =)" --Mr. Liberal

Ha ha. The guy doesn't even see it! Classic.
1.30.2008 10:25am
submandave (mail) (www):
"Making or using derogatory comments, epithets, slurs or jokes with a sexual content"

Does this mean that "fuck you" and "mother fucker" constitute sexual harrassment? If I were a student I'd either transfer or file so many legitimate but stupid complaints that noone could ignore the stupidity of the policy.
1.30.2008 11:11am
Cousin Dave (mail):
Just Some Guy: It won't work. The escape clause is in the "protected class" designation that is scattered throughout the code. If a white guy complains about harassment, the administration will simply rule that he belongs to a non-protected class, and therefore has no rights under the code. And if it goes to court, the court will back the school up on that.

I still haven't figured out when the 14th Amendment was repealed...
1.30.2008 11:16am
Mike Z (mail) (www):
Mishu: Brilliant idea! ("Some enterprising student should start a business helping to define other student's protected class status.")

Here's a start: Everyone who can, identifies himself with one or more particular Protected Classes (a list of which will be made available). Each Protected Class has an emblem or insignia, which comes in two forms: a medal or a ribbon (maybe a button). Then everybody gets to wear one or more of his insignias (medals for formal occasions, like rock-throwing demonstrations and free-for-all dances). That way, everybody knows who he's speaking with and can avoid sensitive subjects (like the weather, as PersonFromPorlock pointed out). The enterpriser will be the maker and suppliers of these insignia. There might even be a "listing fee" for having your particular Protected Class (abbreviated "PC") on the list.
1.30.2008 11:17am
Drop by Drop:

mishu: "Some enterprising student should start a business helping to define other student's protected class status."


Excellent! Like the argument "There are no uninteresting numbers," I foresee a time when everyone can claim victimhood:

A: "You look sad."
B: "I just found out I have no protected class status."
A: "That's awful. So that kinda leaves you out in the cold, huh?"
B: "... You're a genius!!!"
1.30.2008 12:11pm
J'hn'1:
I can see the next "loopholes" here.
1) Institution will not reveal "Protected Classes". Ever.
2) Institution reserves right to add, revise, or remove protected classes without notice.

Although self evidently "wetback" references what was at least once a protected class at least.

Others unknown, but the Administration will discipline you when you cross the line you don't need to know about.
1.30.2008 12:12pm
Drop by Drop:

Mike Z: "Everyone who can, identifies himself with one or more particular Protected Classes (a list of which will be made available). Each Protected Class has an emblem or insignia, which comes in two forms: a medal or a ribbon"


Yes! Jewish students & faculty would wear, I dunno, yellow stars. LGBTQQs would wear pink triangles. Red for the Marxists, and so on.

To prevent any possibility of sexual harassment, males and females would room separately.

To combat global warming, students would room together in large, unheated communal halls built of sustainable, local materials.

To build community, the university's statement of values would be printed in big letters right over the front gate.

I think this idea could really catch on. Way to go, Brandeis!
1.30.2008 12:20pm
Eugene Volokh (www):
Folks: Brandeis surely deserves to be faulted for many things, but not for leaving "protected class status" undefined. The policy I linked to sets it forth:
Harassment, whether sexual or based on an individual’s protected class status (of race, color, ancestry, religious creed, gender identity and expression, national or ethnic origin, sex, sexual orientation, age, genetic information, disability, Vietnam Era veteran, qualified special, disabled veteran or other eligible veteran status or any other category protected by law) is a form of discrimination and will not be tolerated.


So, yes, if you're a white Christian male, you have three protected class statuses (race, religion, and sex), plus of course various others. If you're exposed to various offensive things that you say unreasonably interfere with your education by creating an offensive environment based on your race, religion, sex, and so on, you'd be entitled to complain. Some might suspect that the university won't take complaints from certain groups as seriously as it will take complaints from other groups; that would be reason to fault how the policy is implemented. But the policy clearly covers any complaint based on race, religion, sex, etc.
1.30.2008 12:33pm
Mporcius@gmail.com (mail):
Stacy,

“Protected class status” has a long history. Check out the CUNY Grad Center's Affirmative Action office website:

http://www.gc.cuny.edu/admin_offices/affirmative_action
/aa_policies/nondiscrimination_statement.htm

Here is the relevant excerpt:
The "protected classes", as delineated in Executive Order 11246 (Black, Hispanic, Asian/Pacific Islander, American Indian/Alaskan Native and Women), were expanded on December 9, 1976 by the Chancellor of The City University of New York to include Italian-Americans.
1.30.2008 1:56pm
sammyj (mail):
It appears that "protected classes" can only be officially offended by "non-protected classes". Otherwise, a hierarchy conflict develops between protected classes that would need a another lookup table to unscramble. Additionally, conflicting offenses need a hierarchy. I would suggest a matrix which reflects each protected class on one axis with an associated hierarchy value, and a value rated "offense" category on the other axis. Then the overall matrixed score adjudicates.

I think I see the beginnings of a new board game.
1.30.2008 3:07pm
Tony Tutins (mail):
Non-protected classes include age and wealth (or the lack thereof).
1.30.2008 3:47pm
Elliot123 (mail):
"Elliot- Iraqi war vets fall under special veteran class, and are protected."

Good for them. Are all vets then protected? Is there some sliver of time when military service does not result in protection? And while I ponder this, I wonder if a former SS Sturmfuhrer is considered a veteran?
1.30.2008 4:47pm
CheckEnclosed (mail):
This is symptomatic of a wide-spread and structural problem in dealing with harassment. Long ago my Evidence professor discussed the concept of relevance, saying that to be relevant a piece of evidence just needs to be a brick -- it doesn't need to be the whole wall. Classically, harassment does not become severe and pervasive enough to create a hostile work environment until a significant number of bricks (harassing acts)have been piled together (and reasonable minds can differ as to which incremental brick turns a pile into a wall). A great number of types of conduct may be involved in a particular context. The continually ask a coworker or subordinate out for lunch or drinks may be part of a hostile work environment based on gender. To omit asking a coworker or subordinate out for lunch or drinks, while asking others to do so, may also be harassing. What then of a single invitation to lunch?

When employers start trying to discipline employees for harassing conduct, they tend to get caught up in listing everything that can ever be part of a hostile work environment when it is done pervasively, and then policing it on an incident by incident basis. Especially when combined with "zero tolerance" programs, this can lead to embarrassing and difficult to defend results.
1.30.2008 5:25pm
Hoosier:
>>I wonder if a former SS Sturmfuhrer is considered a veteran?

Actually, he'd be a geriatric. So he probably falls under the disability protection.
1.30.2008 11:03pm
Richard Aubrey (mail):
The Sturmfuhrer would also be a criminal, so he'd have a second accredited victim group.
1.31.2008 10:50am
SFTH:
Regarding the description of protected class above, it seems clear that calling a female a "homo," or calling a white by the "n" word would count as derogation according to the protected class definition. Notice the mismatch. However, does everyone agree that even applied without any regard to the target's class/gender/race/other immutable that the remark still "shows hostility or aversion towards an individual or group based on protected class status"?

Why not just list all the words that Brandeis doesn't like? In general, every bad name heard on HBO would make a pretty comprehensive starting list.
1.31.2008 2:43pm