Incident leads some to discuss limits to free speech

(The following article is reprinted with permission from the Moscow Daily News. The article appeared on Feb. 24, 2005.)


Allegations of objectionable student speech at Washington State University have some members of the university community thinking about First Amendment rights and possible limits on free speech.

“Freedom of speech and freedom from harassment is an area that’s a fundamental issue for our whole society and the law hasn’t drawn a ‘bright line’ neatly separating the two,” said attorney and WSU vice president for university relations Sally Savage.


Earlier this week Savage discussed some of the issues faced by WSU as an institution as it seeks to respond to allegations of intimidation and harassment of students by other students. She did so without reference to the specific case involving alleged harassment of students working at the office of multicultural student services, but in broader terms.


“Criminal harassment is a high standard, much higher than the civil standard of harassment. It would involve a specific intent to intimidate a specific individual,” Savage said. “I can’t think of a case that I’ve been involved in here at WSU that included criminal harassment of students by students.”


Civil law sets a lower standard about what is objectionable. The courts have addressed issues of verbal harassment in the setting of employment. Legal cases have resulted in what is known as a “reasonable person” standard. The courts have ruled the objectionable conduct must be found to be offensive to a hypothetical reasonable person, not just the person bringing the complaint, Savage said. In cases of employment law, the harassment must be repetitive.
“It has to be pervasive and impact the climate of the workplace” for someone to have a legal case under civil law, Savage said.


Conduct within a university, rather than in an employment setting, is yet another case. Although opinions about the law and a university’s regulations may differ, verbal harassment can be a part of the lives of some WSU students.


“We do indeed see cases of students interacting with students leading to allegations of harassment,” Savage said.


Generally the party or parties complaining about the behavior in question feel they were threatened or intimidated by words and gestures that the people on the other side of the incident saw as “just joking” or at least not intended as personally offensive, Savage said.


“That’s the kind of gray area that most cases fall into. The university is better situated to deal with this type of situation than many institutions since we are about learning and education and we don’t have to make a ‘bright line’ determination to intervene and educate our students about their conduct,” she said.


Students called before the university’s conduct board to answer about their behavior are often sobered by the experience. Meeting with administrators and explaining their personal behavior is not something students take lightly, Savage said.


“It’s a rigorous process and can lead to what they call a ‘teachable moment’ – a time when students take a real and hard look at their own behavior. Universities are good at leading people to that,” Savage said.


In general, WSU does not expel students based on harassment complaints. The university has a variety of lesser sanctions it can impose on students.


“There are 14 responses we can make, ranging from a warning to requiring an apology to suspension,” said Elaine Voss of the student conduct office. “Expulsion is rare …we average possibly one expulsion per year and we prefer to use more educational sanctions rather than expel a student if we feel we can avoid that.”


Students offended by the gestures and words of others often see any sanction less than expulsion as insufficient. The whole process of considering educational sanctions can seem inadequate to those bringing a complaint, Savage said.


“It’s not an ideal world,” Savage said. “The fundamental issue here is understanding and dealing with competing rights. That’s what leads to this whole conundrum in the first place. It’s an area of grays and the university’s job is to best serve all the members of our community.”


E. Kirsten Peters can be reached at (509) 334-6397, ext. 310, or by e-mail at ekpeters@dnews.com.