A federal judge struck down the University of Wisconsin's harassment policy last week, saying the code violates students' First Amendment rights because it is "unduly vague." The judge's ruling is similar to a 1989 federal court ruling against the University of Michigan's policy, which instigated President Sheldon Hackney's revision of the University's racial harassment code. But this new ruling, handed down by U.S. District Court Judge Robert Warren, strikes down a narrower code that is similar to the University's revised policy, which was formulated to meet the specifications laid out in the Michigan decision. According to the Wisconsin's Senior Legal Counsel Patricia Hodulik, the school's policy was adopted after the Michigan ruling because school officials believed the code was narrow enough to pass legal muster. "We argued that the rule is constitutional on its face and is not an impermissible restriction on speech," Hodulik said. "We thought ours was considerably narrower than Michigan's policy." But Judge Warren ruled otherwise, stating in his opinion that the policy could be applied to incidents where no harassment occurs. "[The policy] is ambiguous as to whether the regulated speech must actually demean the listener and create an intimidating hostile or demeaning environment for education, or whether the speaker must merely intend to demean the listener and create such an environment," Judge Warren wrote in his decision. Like Wisconsin, the University instituted a new racial harassment code after a University of Michigan "hate speech" code, which was itself based on the University's old racial harassment policy, was found to restrict speech unconstitutionally. But even though the narrower Wisconsin policy was declared unconstitutional, University officials said yesterday they believe the University's new racial harassment policy is narrow enough to meet the First Amendment standards set up by the two rulings. And Assistant to the President Steven Steinberg, who has been Hackney's chief aide in formulating the University's new policy, added that the University does not have to abide by the judges' decisions because the University is a private institution. The University of Wisconsin's code says that the school may punish people for directing "racist or discriminatory comments, epitaphs or other expressive behavior at an individual or on separate occasions at different individuals to intentionally demean . . . and to create an intimidating, hostile or demeaning environment." The University's new code has very similar guidelines to the Wisconsin policy. Like the Wisconsin policy, the University's requires that the racist behavior be directed at an identifiable group, it requires that it be intentionally harmful, and that it insult or demean the race, ethnicity or national origin of a person or group. Hodulik, who said the Wisconsin Attorney General represented the university, added that the school's Board of Regents has not decided if they will appeal the ruling. Wisconsin's policy came under fire in March 1990 when 10 students, one faculty member and the student newspaper at the University of Wisconsin at Milwaukee filed suit against the university. Since the code was implemented in 1989, about 10 students have been punished for harassment violations, but Jeff Kassel, attorney for the complainants, said yesterday only one of the 10 students suing the University was brought up on charges. Kassel said his arguments in front of the judge were twofold -- that the policy was too vague and that it was too broad. "The code was too broad and prohibited a lot of speech protected under the First Amendment . . . and it was too vague and didn't give adequate warning about what the nature of prohibited speech was," Kassel said. Kassel said Wisconsin's policy differs from Michigan's code in that it does not state specific locations where it applies -- such as in the classroom -- and it applies to only speech directed at an individual, not to a group.
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