One Strike Is Enough

At the University of Mississippi, it’s possible that a single offensive remark could land a student in trouble.

While this may not seem significant, Mississippi appears to deviate in its harassment policies from what lawyers and free speech experts consider the norm. Constitutionally, almost all hate speech is protected up until it becomes severe, pervasive and repeated. Then it qualifies as harassment and then, according to experts, administrators can intervene.

But Lee Tyner, the outgoing general counsel at Mississippi, has adopted a different approach. He contends that college leaders shouldn’t wait until a student has been bullied to the point that the behavior finally can be considered harassment. Then, the institution would be liable for not having stepped in, he said in an interview.

“Some people would say you can’t punish a one-off racial slur because it’s not pervasive,” Tyner said. “Effectively my position is to stop them from doing it again and again before it becomes pervasive.”

This touches on growing tensions at college campuses, where some students have little patience for even one comment they consider offensive. This has been evident in the shouting down of controversial speakers, notably Charles Murray at Middlebury College, and attempts at silencing the white supremacist Richard Spencer. Students have called for their college presidents to block said speech and quash those whom they deem offensive.

Crafting a harassment policy that balances both the First Amendment and campus order and safety can prove difficult, Tyner said -- and he believes he’s done it correctly, with the blessing of the one of the most prominent civil liberties organizations in academe.

Per federal guidelines, behavior qualifies as harassment when it interferes with a student’s ability to enjoy their education -- which generally means students can’t claim harassment if they encounter an offensive protest, or a rude comment is said to them.

Punishments may vary, but a student can violate the Mississippi policy if they behave in a way that, if repeated, could deny someone access to university resources or an education.

In 2003, the U.S. Education Department's Office for Civil Rights drafted a Dear Colleague letter stressing that its regulations did not mean to interfere with free expression. It noted that harassment is indeed prohibited under certain federal rules, but that colleges need not be overzealous in banning all speech the campus might deem offensive.

“Some colleges and universities have interpreted OCR's prohibition of ‘harassment’ as encompassing all offensive speech regarding sex, disability, race or other classifications. Harassment, however, to be prohibited by the statutes within OCR's jurisdiction, must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive,” Gerald A. Reynolds, then the assistant secretary for the Office for Civil Rights, wrote in 2003.

The way Tyner has created his policy -- the bulk of which has been in effect for nearly a decade, he said -- an action must “effectively” deny a victim access to university resources.

A college is only liable for these types of cases -- which would generally fall under Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972 -- if it deliberately ignored the behavior.

Tyner expressed frustration that most legal scholars have interpreted past cases to mean that colleges can’t interfere until they would be liable -- he called for some “smart analysis” on this issue that could help institutions find that wiggle room.

“You’ve got to be able to cure the hostile environment before it’s created,” he said.

Generally, university policies on harassment have been overly broad and prescriptive, said Samantha Harris, vice president of policy research at the Foundation for Individual Rights in Education, or FIRE. Most students also don’t grasp what legally could be deemed harassment, Harris said.

FIRE maintains a database of free speech and other policies at institutions around the country and gave a “green light” rating to Tyner’s policy, meaning it was legally sound and matched FIRE’s criteria for not restricting free expression.

But since 2003, when OCR released the Dear Colleague letter, colleges have slowly come more in compliance with the legal guidelines, Harris said.

Just because an institution can’t necessarily punish a student for poor behavior that fails to rise to the level of harassment doesn’t mean it can’t explore other options to remedy the problem, Harris said.

Universities can issue climate surveys to determine when and how students might feel threatened, she said. And administrators don’t need to remain quiet -- they can combat hate speech with affirming statements, Harris said.

“It’s not like their hands are tied,” she said.

Studies show that students, while appreciative of First Amendment principles in theory, do not appreciate its nuances or do not support it.

According to a survey FIRE released earlier in October, 93 percent of students believe that universities should invite a variety of speakers to campus, but among those who identified as “very liberal,” 78 percent of them believe that in some cases that invitation should be rescinded -- about 69 percent of students across the political spectrum said a speaker shouldn’t be allowed to come if they had made a racist comment.