Revising the Code of Student Conduct

A PROPOSAL BY THE BROWN ACLU

NOVEMBER 10, 1995

We at the Brown American Civil Liberties Union (ACLU) are proposing the following changes to the Code of Student Conduct in an effort to ensure a consistent, unambiguous, and Constitutionally acceptable disciplinary code that does not consider protected speech a violation or an aggravating factor under any circumstances. We fully support the University's efforts to promote tolerance, understanding, and to prevent discrimination and prejudice. However, we strongly disagree with the assertion that the current Code prohibits only "behavior" and not Constitutionally protected speech. In addition, we believe that although hate speech may be offensive, it should not be censored. The solution to hate speech is more speech, not less. Brown must insure that all opinions, no matter how unpopular, can be freely stated and challenged within a free and open University. The current "behavior" guidelines, no matter how matter how well intentioned, can potentially still be used to punish unpopular, yet Constitutionally protected speech. The potential for the current code to be wrongly interpreted by the University Disciplinary Council (UDC) is great, and has been used in the past to justify harsher penalties for speech-related violations than for actual physical confrontations. We seek to rectify this situation, and we feel our proposals should satisfy both the desire to protect the Brown community and to protect the rights of community members. We urge the timely and respectful consideration of our reform proposals listed below.

Problems with the current Code of Student Conduct:

• The primary provisions governing speech and behavior (Offense II and Offense IV) are vague, overly broad, and are often interpreted in ways that trespass upon the Constitutionally protected rights of citizens under the First Amendment.
• Under the current system it is up to the subjectivity of the University Disciplinary Council to determine the difference between speech and action, when interpreting the code.
• The term "behavior" can be construed to include speech unless there are specific interpretative guidelines to restrict ambiguity. Hence the UDC can come up with a different definition of "behavior" every time it decides a case.
• Students cannot know whether certain actions will be deemed punishable by UDC until they are brought up on charges due to the lack of specificity in the Code.
• UDC has consistently imposed harsher penalties in cases where speech was deemed an aggravating factor. In addition, these penalties have been inconsistent and have shown no regard for precedent or prioritization of violations.

ACLU's suggested reforms:

• Eliminate the confusing and overly broad parts of the Code so as to make violations clearly enumerated, defined, and in concurrence with the Constitution of the United States.
• Revise the Code so as to ensure consistent and appropriate interpretation by the UDC that does not consider speech as a violation or an aggravating factor in other violations.
• Give the Brown Community clear and unambiguous identification of behavior that will be considered in Violation of the Code.
• Provide the Brown Community with comprehensive edited transcripts of UDC cases so that the public record can adequately reflect the factors that lead to UDC interpretations, decisions, and penalties. Such release of information will limit rumor and misinformation, as well as allow the Community to adequately judge the consistency and appropriateness of UDC actions.

Offense I under the Standards of Student Conduct currently reads:

I. Behavior which disrupts or materially interferes with the exercise by others of the basic rights to which they are entitled on University property or at University functions.

We suggest that Offense I be changed to read:

I. Behavior which materially interferes with the exercise by others of the basic rights to which they are entitled on University property or at University functions.

We suggest one revision to Section I: the deletion of the word "disrupts." Its fault is that it adds nothing to Section I but its inherent vagueness. The term "disrupt" could be construed to encompass anything from interrupting a speaker to creating a distraction, which should clearly not be punishable offenses. Established First Amendment law protects the rights of citizens to create distractions or incidents in protest, as long as they do not impede the exercise of rights by others. Any true offensive impediment to the functioning of the University or the exercise of rights by students is covered by the remaining, precise term "materially interferes." We believe it is this revised phrase that is more consistent with the Constitution.

Offense II

Offense II currently reads:

II. Behavior which:

a. Causes or can be reasonably expected to cause physical harm to person;

b. Or shows flagrant disrespect for the well-being of others;

c. Or is unreasonably disruptive of the University community or its neighborhoods;

d. Or causes or can be reasonably expected to cause damage to property.

We suggest that Offense II be changed to read:

II. Behavior which:

a. Causes or can be reasonably and directly expected to cause physical harm to person;

b. or causes or can be reasonably and directly expected to cause damage to property.

These two provisions exhaustively cover those offenses for which Section II appears to have been designed, namely instances of assault, vandalism, throwing, hurling, or firing projectiles (see handbook "Comment").

The current Section II-b should be eliminated since its broadness and vagueness makes even the mere expression of dislike for an individual or hurting another's feelings a punishable offense. Moreover, the personal and property "well-being" of others is already adequately addressed in the above revision of Section II.

The current Section II-c should be deleted since it is unnecessarily duplicative of Section I. Section I safeguards University Community members' basic rights, defined in the "Policies" section of the Standards of Student Conduct as "peaceful assembly, free exchange of ideas and orderly protest, and the right to attend, make use of or enjoy the facilities and functions of the University subject to prescribed "rules." Section II-c adds nothing to this protection, but invites a more hazy interpretation through the term "unreasonably disruptive." Section I's phrase "materially interferes" is devoid of this subjective interpretation since it calls for a direct causal relationship between the offensive behavior and the impairment of the exercise of the aforementioned basic rights. It is Section I's wording that more adequately protects the exercise of Constitutional rights while also protecting the community.

Offense IV currently reads:

IV. Harassment: The subjection of another person or group to abusive, threatening, or intimidating actions, including those based on race, religion, gender, handicap, ethnicity, national origin, or sexual orientation. (See section IX "Civil Rights & Non-Discrimination.")

We suggest that Offense IV be changed to read:

IV. Harassment: Engaging in verbal or physical behavior which singles out and subjects an individual or individuals to repeated actions of a threatening and intimidating nature. (See section IX "Civil Rights and Non-Discrimination")

Offense IV, while purporting to be a Harassment clause, fails to serve its purpose and acts as a catchall to punish all "actions" which could be construed as objectionable. Any action causing personal or property harm, or the infringement of the exercise of basic rights remains punishable under Offenses I and II. Nothing besides harassment should remain to be addressed in the harassment clause. This clause, as stands, uses the broad and inadequately defined terms "subjection," "intimidating," and "abusive." The use of broad or potentially ambiguous language creates loopholes in the disciplinary code, opening it to subjectivity and bias. A behavior code should be objective, leading to uniform interpretation despite the extrinsic circumstances of incidents or the current composition of the Disciplinary Council. Therefore, language must be precise. In addition to changing the wording of the clause itself, this new wording removes the list of possible forms of harassment appended to the current offense, which through their omission indeed disparage forms of harassment not enumerated.

Conclusion:

We at Brown ACLU firmly believe in the necessity of revising the Code of Student Conduct. Deleting the aforementioned clauses, we feel, is the best way to ensure the consistent, unambiguous, and Constitutional identification of offensive behavior at Brown. It is these conditions we seek to meet, and we are committed to pursuing all possible avenues to achieve this end. Another possible method of accomplishing this includes the insertion of a codified clause explicitly stating that Constitutionally protected speech will not be considered a violation or an aggravating factor at Brown. However, we strongly feel that deleting and amending the overly- ambiguous clauses is the best way to protect the Brown community from possible abrogation of their rights under the First Amendment.

Important UDC Cases

Selected cases where speech was a violation or an aggravating factor:

March 7, 1991

Douglas Hann expelled for Offense II and IV after shouting racial epithets at students while intoxicated. Penalty took into account previous convictions on charges of alcohol abuse (Offense V).

March 19, 1991

Student found guilty of Offense II. Penalty was probation for the rest of his undergraduate years.

September 21, 1992

Provost Frank Rothman reverses a UDC finding of guilt for student Steven Townley, charged with verbal racial harassment under Offense IV. He disputes UDC's judgment of sufficient evidence to convict.

February 11, 1993

Michael Weiser found guilty of leaving three drunkenly threatening answering machine messages on a female student's answering machine (Offense II and IV). Student was a member of the PLME program. Penalty was dismissal for four years.

Selected cases involving actual physical confrontations:

April 13, 1992

Student found guilty of engaging in non-consensual sexual contact with a non-Brown student in his dorm room (Offenses II and III). Penalty was suspension for two academic years, with reapplication contingent upon presentation of evidence of consultations on personal growth and development.

September 21, 1992

University Vice-President Brian Hawkins reduces the punishment of student Alan Stern from a 2 to 1 year dismissal sentence for non-consensual physical contact (Offense III). He cites the possible partiality of a UDC member as well as the punishment's inconsistency with previous UDC penalties as his reason for the reduction.

February 25, 1994

Off-campus attack by a Brown student upon a RISD student (Offense II). Penalty is one semester dismissal.

October, 1995

2 students found not guilty of Offense II in a brawl at Spats where several students were injured.