U. harassment code may violate case's constitutional standards

Constitutional law experts said yesterday the University's newly-adopted racial harassment policy may violate constitutional standards set by a Wisconsin federal court last week. But University officials said the school's private status exempts it from adhering to constitutional free-speech guidelines. The federal court ruling said the University of Wisconsin's hate speech code infringes on students' First Amendment rights because it is too broad and too vague. The University's code, like the Wisconsin policy, was revamped after a federal court in Michigan struck down a policy almost identical to the University's old code. "If it's reviewed under the federal constitutional requirements, it is dubious at best," Associate Law Professor Seth Kreimer said last night. "There are a lot of [U.S. Supreme Court] cases . . . that suggest that the offensiveness of a statement does not remove constitutional protection for it." And Associate Political Science Professor Ellen Kennedy said that universities are "on thin ice with these policies" because they limit free speech, which she described as a fundamental right on college campuses. "As a university, we should be very cautious about having such policies and should bend over backwards to allow people to say what they think," Kennedy said. "If someone's feelings are hurt, they can resort to civil law. We don't have to tie ourselves in knots constitutionally to try to protect people's feelings." Kennedy added that harassment policies are constitutionally difficult because they deal with the question of intent, an issue that is hard to settle. The University of Wisconsin's code stated that harassment is "intentional conduct which constitutes a serious danger" to a person and is directed at the person it offends. The policy is a general code referring to several different types of harassment. The stipulations of intent and direct address are also integral parts of the University's racial harassment code. U.S. District Court Judge Robert Warren ruled against Wisconsin, saying the school's policy does not specify exactly which instances are harassment, and allows for people to be punished for acts that are constitutionally protected. University officials said consistently throughout last year's debate over the new policy that the University does not have to follow the Constitution's guidelines on free speech. But Assistant to the President Steven Steinberg said this week he thinks the current code would hold up in federal court. And Assistant Political Science Professor William Harris said he thinks the University's harassment policy is a "respectable attempt to reflect the values of the Constitution," noting that besides free speech, the document also guarantees the right of citizenship. Harris added that he does not think the harassment policy is an issue for legal experts to decide, but for the members of the University to discuss and decide "who we are at the University." Law Professor Frank Goodman said that even the U.S. Supreme Court has not consistently settled the question of harassment. He said that over the past 40 years, Justices have swung from one side of the complex issue to the other, noting that in recent years, the Court has ruled that "hate speech is constitutionally protected." But Goodman also said "it is possible that the new, more conservative court may relax First Amendment rights." The Supreme Court is expected to hear arguments in a case this winter concerning the constitutionality of hate speech codes. The case, St. Paul v. R.A.V., challenges whether a St. Paul, Minnesota city ordinance preventing racially hateful expression is constitutional. University General Counsel Shelley Green said last night she could not comment on whether the University's racial harassment code falls within constitutional standards based on the recent decision in Wisconsin. But she noted that "the policy that was challenged is a different policy from ours" and that Wisconsin's enforcement regulations are also different.

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