NKU under FIRE

The right to free speech is guaranteed by the First Amendment of the U.S. Constitution, but outside agencies believe this right for students at Northern Kentucky University is being compromised.

The Foundation for Individual Rights in Education (FIRE), an organization whose mission, according to its Web site, is to stand up for individual rights of college students, rated NKU as a “red-light university.”

On FIRE’s site, it says a red-light university is one that has codes that “both clearly and substantially restricts freedom of speech.”

In NKU’s Code of Student Rights and Responsibilities, under the “Disciplinary Regulations” section, it states students can be held accountable to civil and criminal authorities and to the university for violating the code.

Under this same section, the code prohibits “intentionally or recklessly causing physical or emotional harm to any person, including self.”

But according to John K. Wilson, founder of www.collegefreedom.org a Web site about academic freedom, using the phrase “emotional harm” is problematic because it is hard to pinpoint an exact definition. In numerous cases, including R.A.V. v. City of St. Paul, the Supreme Court ruled it is unconstitutional for a code regulating speech to be either overbroad or too vague. Wilson said the problem with these types of codes is that people can interpret the same code in different ways.

Being overbroad or too vague “has a chilling effect on free speech” according to Greg Lukianoff, president of FIRE. He said students who don’t know how to interpret the code don’t practice free speech because they don’t know what effected may occur.

Wilson said one interpretation of “emotional harm” could mean hurting someone’s feelings, which is something that cannot be banned.

“In the grown-up world of a university, sometimes a person’s feelings are hurt. Should a student be punished if they call someone a racist? That might hurt someone’s feelings. In fact, so can almost any controversial statement,” Wilson said.

Also, banning emotional harm to self, according to Wilson, “is just plain weird.”

“What will they say, ‘stop hurting your own feelings or we’ll expel you’?” he said.

Another issue FIRE considered red-light worthy in NKU’s code is under the same section, banning “disorderly conduct or lewd, indecent or obscene conduct” on university property. FIRE also considers this too open to interpretation. Merriam-Webster dictionary defines indecent as “offensive to good taste; unseemly. Offensive to public moral values; immodest.”

“This covers a lot of constitutionally-protected speech,” Wilson said.

In the case of Texas v. Johnson, the Supreme Court ruled, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable.”

NKU’s code also states “bigotry will not go unchallenged within this community,” but does not explain exactly what it considers a bigot. The Merriam-Webster dictionary defines a bigot as “a person who is obstinately or intolerantly devoted to his or her own opinions and prejudice.”

According to Adam Goldstein, attorney advocate for the Student Press Law Center (SPLC), a national advocate for student free-press rights, this part of the code is a form of viewpoint discrimination. “While we need not share, and are indeed free to condemn, people who hold viewpoints we individually believe are intolerant, that does not strip those people of First Amendment protection. It is therefore legally problematic for a government institution like NKU to declare that they are, essentially, ‘intolerant of the intolerant,'” Goldstein said.

Dr. Mark Shanley, NKU vice president of student affairs, said Goldstein poses a “rational argument.”

“But because we are an educational community we are committed to higher standards of behavior. We look to practice integrity and respect the rights and property of others and to discourage behaviors that violate that,” Shanley said.

According to Sarah Sidebottom, general counsel and vice president of Legal Affairs, “It’s impossible to define (the code) with any particularity, because as soon as we define it, something is going to occur that we haven’t defined. Then the defendant will say, ‘You can’t charge me with that because it’s not in your list.’

“We use generic words that a community can interpret based upon their own understanding and standards,” Sidebottom said.

Sidebottom said even though FIRE may have interpreted parts of the code as being overbroad or too vague, the university does not feel that is true.

Shanley said he is “very proud of the code, and it achieves what we are trying to do,” and he is pleased FIRE only disagrees with a couple words in the 33-page code.

While the downloadable PDF version of the Student Code was updated, the online version of the code on the dean of students Web site under FAQs, up until at least Sept. 29, still contained parts of the old version of the code. In the previous code, the university prohibited “harassing, annoying or alarming another person