This morning, as I was walking to work, a homeless man tried to get my attention. He yelled, “Hey, big guy!” If I attended Richard Stockton College in southern New Jersey, he could have been in big trouble.
You see, Stockton has a policy banning “derogatory references” to “a person’s race, gender, age, religion, disability, affectational or sexual orientation, or ethnic background.” Such references are deemed “harassment,” even if “there was no intent on the part of an individual to harass or demean another.”
I’m sure that homeless guy had no intention of “demeaning” me — he just wanted a buck. But who cares about intent? By Stockton’s logic, if I’m offended that he called me a male of the large persuasion (note to any early-twenties females reading this: it’s all muscle), I can press charges.
Now, if it seems ridiculous that inadvertently hurting someone’s feelings can be deemed “harassment,” well, it should. It’s especially outrageous at a university. Academic inquiry often produces hurt feelings — just read some of the harsh criticism professors often levy at each other. The scientific method doesn’t leave room for touchy-feely sensitivity — just ask Galileo, who got in trouble for “offensively” pointing out that the earth revolves around the sun, not vice versa.
Stockton’s policy is even more pernicious in light of two additional factors. First, Stockton is a public college — which means it is an arm of the state and therefore bound by the Constitution. By enacting this “speech code,” Stockton definitely runs afoul of the First Amendment — never something you want part of the government to be doing.
Second, Stockton didn’t come up with this speech code by itself. The language is drawn from the “Interim State of New Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Workplace.” That mouthful of a policy was just used at another public New Jersey college, William Paterson University, in an instance of censorship even more chilling than the simulated scenario I outlined above.
At William Paterson, a 63-year-old Muslim grad student was convicted in June of “harassment” for civilly expressing his religious objection to homosexual activity in a private e-mail. The student received a spam e-mail from a women’s studies professor urging him to attend a viewing of a “lesbian relationship story” film. He responded by citing his religious beliefs and asking not to receive other such e-mails in the future. The professor claimed she felt “threatened” (yes, by a 63-year-old) and pressed charges.
Her rationale for such an extreme reaction? William Paterson’s own policies, which use the same language as Stockton’s, drawn from the aforementioned Interim State of New Jersey Policy. And she was not standing alone: Peter C. Harvey, the attorney general of New Jersey (now facing impeachment, but that’s another matter), affirmed the punishment.
As that real-world example shows, different people have different conceptions of what is “derogatory” and “demeaning.” Speech cannot be banned simply because it “offends” someone. The proper response to being offended is to act like an adult and respond with moral witness, not to press trumped-up “harassment” charges. There is a common-law definition of harassment, and it bears little resemblance to Stockton’s, William Paterson’s, or Peter Harvey’s.
A federal district court applying the law developed by New Jersey’s own appellate circuit recognized this recently — it struck down a code just like Stockton’s at Shippensburg University in Pennsylvania. (Full disclosure: The suit was coordinated by the Foundation for Individual Rights in Education, or FIRE, where I work.) Other circuits have done the same, and the Supreme Court itself invalidated several speech codes in the 1990s.
Stockton’s ill-conceived “Student Policy Prohibiting Discrimination, Harassment or Hostile Environments in the Academic/Educational Environment” stands on the wrong side of both the Constitution and common sense. That’s why FIRE named it our “Speech Code of the Month” for August 2005.
As Stockton’s students return to campus and classes start up again, those who love liberty would do well to fight this disaster-waiting-to-happen of a policy. But be careful: If you want to get the attention of President Herman Saatkamp, and you should, I wouldn’t recommend yelling, “Hey, big guy.” That might be harassment.
Charles Mitchell is a program officer at the Philadelphia-based Foundation for Individual Rights in Education. Mitchell can be reached at [email protected].
