II. Behavior which:

1. Causes or can be reasonably expected to cause physical harm to person;
2. or shows flagrant disrespect for the well-being of others;
3. or is unreasonably disruptive of the University community and its neighborhoods;
4. or causes or can be reasonably expected to cause damage to property.

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.

Analysis

We believe Offenses II(b) and IV are overbroad and vague enough to constitute a content-based, prior restraint on speech. We believe this allows the punishment of First Amendment protected speech, and "chills" the expression of ideas on campus.

Proposed Changes

I. We propose to delete Offense II(b), and replace Offense IV with the following:

Offense IV: Verbal assault and harassment:

A. Verbal assault:

1. A person is guilty of verbal assault if:
   1. he or she willfully threatenes to cause bodily injury to the person threatened or any other person; or threatens to cause physical damage to the property of the person threatened or any person other than the actor; or threatens to subject the person threatened or any person other than the actor to physical confinement; and,
   2. the words or actions of the actor, taken in context, cause the threatened person to reasonably fear that the threats will be carried out.
      

1. A person is guilty of harassment if:
   1. the actor anonymously engages in communication and/or physical behavior aimed directly at an individual or group of individuals which is:
      1. unwanted; and,
      2. sufficiently severe to reasonably cause serious alarm on the part of harassed individual(s).
         
   2. having identified himself or herself, the actor engages in communication and/or physical behavior aimed directly at an individual or group of individuals which is:
      
      1. willful;
         
      2. understood by the actor to be unwanted;
         
      3. repeated or sustained; and,
         
      4. sufficiently severe to reasonably cause serious alarm.
         
   3. Clause B (harassment) shall not apply to any otherwise permissible demonstration, assembly, protest, or picketing.
      

Proposed Addendum to the Altered Code

No part of section II, under "Offenses," shall be construed to limit a student's ability to speak, in class or outside of class, on any issue until his or her speech reaches the level of verbal assault or harassment.

In evaluating changes to Brown's Standards for Student Conduct, it may be helpful to consider the history of other universities' speech codes.

[Note: the following universities all enacted speech codes similar to Brown's current Standards.]

The University of Michigan (1989)

1. Any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status, and that
   1. Involves an express or implied threat to an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or
      
   2. Has the purpose or reasonably foreseeable effect of interfering with an individual's academic efforts, employment, participation in University sponsored extra-curricular activities or personal safety; or
      
   3. Creates an intimidating, hostile, or demeaning environment for educational pursuits, employment or participation in University sponsored extra-curricular activities.(98)
      

In 1989, this code was challenged in court, in a case known as Jane Doe v. University of Michigan.

The plaintiff, a biopsychology teaching assistant, said he feared that under the code he could not discuss controversial theories stating that certain biological differences among the sexes and races made for differing personality traits and abilities

A federal district court judge permanently enjoined the parts of the code that restricted speech, leaving those parts regulating physical conduct. The court ruled that Michigan's code could be used to punish the content of political or academic speech. The court also said the words "stigmatize" and "victimize" were "general and elude precise definition." The words "threat" and "interfere" were also vague, because it was not clear what conduct would constitute such a threat or what expression constitutes interfering.

Comparison with Brown:

Brown's Offense IV (harassment) is actually broader than Michigan's rule was: Offense IV includes speech concerning groups, not just individuals. Also, Brown's code is equally vaguely worded, proscribing "abusive" behavior.

The plaintiff's fears would have applied at Brown too, because John Doe's controversial ideas could be construed as "abusive" to a group of people.

The university may discipline a student in nonacademic matters in the following situations:

(2)(a) For racist or discriminatory comments, epithets or other expressive behavior directed at an individual or on separate occasions at different individuals, or for physical conduct, if such comments, epithets or other expressive behavior or physical conduct intentionally:

1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and
   

2. Create an intimidating, hostile or demeaning environment for education, university-related work, or other university-authorized activity.
   

In 1991, the code was challenged in court as UWM Post v. Board of Regents of the University of Wisconsin System (1991)

A federal district court judge invalidated the rule, writing, "Since the elements of the UW Rule do not require that the regulated speech, by its very utterance, tends to incite violent reaction, the rule goes beyond the present scope of the fighting words doctrine."

Comparison with Brown:

Although UW's code was broader than Brown's, Brown's Standards for Student Conduct are equally vague, and also do not require that the regulated speech pose any kind of threat or danger.

Vanderbilt's community affairs board recommended an amendment to the existing discriminatory harassment code, following the Supreme Court decision in RAV v. St Paul, which ruled that racial epithets are protected speech. Jeff Carr, general counsel and vice-chancellor of university relations eventually recommended that the amendment to the code not be adopted, that the existing code be dropped, that a statement discouraging personal vilification and a conduct rule prohibiting threats of violence be added to the student handbook. The university chancellor accepted Carr's recommendation, and the statement now appears in Vanderbilt's student handbook

Carr wrote,

"The difficulty lies entirely in creating a code that reaches only certain speech under certain circumstances, but does not limit or have a chilling effect on other speech. The difficulty is enhanced because both the circumstances and the intent are relevant to the question of whether particular words should be prohibited. The same words that can be used to express personal contempt, hatred, and vilification can under other circumstances and with different intent give no offense at all. While theoretically it might be possible to draft a rule that reached only hate speech directed at an individual rather than that individual's ideas, as a practical matter that line may be too fine to draft."

Comparison with Brown

Ten Stanford University students, led by Stanford Law School graduate Robert Corry, claimed that Stanford's rule violated the U.S. Constitution and the California Constitution. The students argued that the rule was a "content-based, viewpoint-discriminatory, prior restraint on speech," and that the rule had a chilling effect on campus speech. The California Superior Court found for the students and issued an injunction against this portion of the code.

Comparison with Brown:

Stanford's code was much more precise than Brown's current Offense IV (harassment) -- it required that the speech be directed at an individual, and it specifically prohibited 'fighting words.' Even so, the court ruled that the Stanford rule's breadth would have allowed Stanford to punish speech on the basis of content, and would "chill" speech on campus. This seems to be the case at Brown today.