Freedom of Speech vs. Code of Student Conduct

On December 5, 2023 University Presidents Testify In House Hearing On Campus Antisemitism 

The tension between freedom of speech and Code of Student Conduct at private schools jarringly entered the public domain after the President of the University of Pennsylvania (“Penn“), Liz Magill, responded to a question by Rep. Elise Stefanik at a hearing of a US House Committee on antisemitism “Does calling for the genocide of Jews violate Penn’s rules or code of conduct, yes or no?” with “If the speech turns into conduct it can be harassment,  yes”. 

The interpretation of this response is that only words not conduct are protected but how can you separate the two when words encourage wrongful conduct or makes the targets of hate speech feel fearful or worthless? What makes Liz Magill’ s response sound particularly pernicious is that her school would wait for an act of genocide (“harassment”) before it decides to act!

Magill’s position was backed up by the response of the President of Harvard, Claudine Gay, who stated that only if antisemitic speech “crosses into conduct” would the school take action.

Surely, one of the main missions of a school is to foster a safe student environment for intellectual growth and prevent permissive behavior. The Oxford Union Society in England created in 1823 is an example of a laudable model that preserves freedom of speech while promoting vigorous debate in a civilized manner. It is an independent student led society with membership primarily drawn from the University of Oxford and celebrated its Bicentenary year in 2023. 

Private schools (or any educational institution for that matter) should not protect free speech on campus that results in students cowering behind closed doors for fear of being assaulted, hiding their ethnicity for fear of being bullied or in fear of their lives because of incitement, which has been the experience of Jewish students at Ivy League and other schools. 

While Freedom of Speech and academic freedom are principles that we can easily espouse and support what happens if these principles, like calling for the genocide of a particular group, are abused and interfere with a student’s ability to learn as a result of hate speech, intimidation, incitement or faculty bias? 

At the outset, let’s acknowledge that non-government entities (like Ivy League schools) are NOT required to uphold the First Amendment. Rules that restrict free speech to maintain a civil and safe environment conducive to learning is not in violation of the First Amendment. Similarly, a private health club or workplace prohibiting guns from being brought onto their premises does not violate the Second Amendment of the right to bear arms. 

Schools should uphold Free Speech but not at the expense of creating a hostile campus environment that degrades the well-being of its students. There is no reason that schools cannot establish decorous venues of free speech that enables both points of view to be expressed and heard without interruption just like it is done at the Oxford Union Society.

In the case of the Penn, the “Pennbook”  is  a collection of policies related to student life which includes Penn’s Code of Student Conduct. Section III d. of that code reads as follows:

“To refrain from conduct towards other students that infringes upon the Rights of Student Citizenship. The University condemns hate speech, epithets, and racial, ethnic, sexual and religious slurs. However, the content of student speech or expression is not by itself a basis for disciplinary action. Student speech may be subject to discipline when it violates applicable laws or University regulations or policies.”

Rights of Student Citizenship are listed as follows:

1. The right to have access to and participate in the academic and non-academic opportunities afforded by the University, subject to applicable standards or requirements.
2. The right to freedom of thought and expression.
3. The right to be free from discrimination on the basis of race, color, gender, sexual orientation, religion, national or ethnic origin, age, disability, or status as a disabled or Vietnam Era veteran.
4. The right to fair University judicial process in the determination of accountability for conduct.

It is very hard to decipher from the above whether there is any consequence for committing condemned speech because one cannot tell how it would violate any “applicable laws or University regulations or policies” especially when you cannot find any applying to students outside of the Pennbook. As far as I could tell, all the Principles of Conduct under Penn’s University Policies relate  to faculty, administration and staff, NOT students. Policies relating to students are only covered in the Pennbook.

To my mind there should be disciplinary teeth to the University’s condemnation of hate speech, epithets. racial ethnic sexual and religious slurs committed on campus. However, condemned speech should also include “threat” speech of a which a call for genocide is just one example. If such speech is categorized as unacceptable conduct then the misguided wall created to separate these type of speeches from conduct will disappear. Using this approach calling for the genocide of any particular group would definitely be considered unacceptable conduct and elicit a disciplinary response.  

Code of Student Conduct, created by the appropriate authoritative bodies, are supposed to be respected to avoid unruly behavior or a state of anarchy. In the case of schools, more freedom of speech is not the answer to protecting students from harm. It should not take invoking Title VI of the Civil Rights Act of 1964 to protect students from harassment, intimidation, incitement and other forms of destructive campus behavior which should instead be the primary duty of the school’s respective administrative body.

A student’s well being and self worth should not be sacrificed at the altar of free speech. It is therefore incumbent upon school administrations to uphold rules of conduct, whether affecting faculty or students, that will facilitate debate in a civilized manner and cultivate a safe environment that enables students to grow intellectually and confidently rather than feel diminished and alienated in a cesspool of hate and intimidation. This effort can be supported by giving examples of condemned speech in the Code of Student Conduct and stating that such speech can be subject to disciplinary action, period, with examples of the type of disciplinary action that can be taken.

Free Speech, other than condemned speech, should be encouraged combined with guidelines for conducting vigorous debate in a decorous manner. School administrations would generally be better off not making statements about current events and instead remain neutral because they will likely be accused of taking one side over another. Instead, the emphasis should be on upholding the Code of Student Conduct allowing for no ambiguity of what it means to have an environment of learning without compromising the well being of its student body. That, more than anything else, will exhibit the true values a school espouses for edifying its student body.