Johns Hopkins student Justin Park posted on Facebook an invitation to attend his fraternity’s “Halloween in the Hood” party. After the school’s director of Greek Affairs notified Park that he found the invitation to be offensive Park removed it, replacing it with another that eliminated (in Park’s estimation) the troublesome language. The second invitation played up the school’s concerns over the first, made fun of O.J. Simpson and Johnnie Cochran, and referred to Baltimore as an “HIV” pit. Members of the Hopkins’ Black Student Union attended the party and found its themes offensive. Soon thereafter the associate dean of students notified Park that he was charged with “failing to respect the rights of others,” violating the university’s anti-harassment policy, “failure to comply with the directions of a university administrator,” “conduct or a pattern of conduct that harasses a person or group,” and “intimidation.” Following a hearing Johns Hopkins suspended Park for year, required him to complete 300 hours of community service, attend a university workshop, and read twelve books and write a paper on each. Johns Hopkins also adopted a new, stricter speech code than the one Park violated, one that announces ““[r]ude, disrespectful behavior is unwelcome and will not be tolerated.” (Source: Grug Lukianoff and Will Creeley, Facing Off Over Facebook, The Phoenix, 27-Feb-2007) [Lukianoff and Creeley are the president and senior program officer, respectively, of the Foundation of Individual Rights in Education]
Johns Hopkins is a private institution. The First Amendment does not apply to its speech-limiting actions. It is free to establish and enforce a code of acceptable speech according to its internal disciplinary policies. This is not a First Amendment case, but it is a free speech case.
University speech codes are an abomination. In theory a speech code can help shield a school from liability for discrimination claims brought under Title IX of the Education Amendments of 1972. But, just as employers generally adopt and enforce zero-tolerance sexual harassment policies that are more restrictive than the current state of sexual harassment law, university speech codes often limit speech that would not be actionable under Title IX. Such over-reaching codes are almost impossible to enforce as written, and are honored only in the breach. The result is uneven enforcement and furthering of a climate of crabbed, truncated, too-cautious speech. If there is any place where diversity of opinion, thought, and speech should be nurtured, it is in a university. Who to blame? The Phoenix article notes “the campus free-speech movement of the 1960s and ’70s was highly successful. The sad irony is that many from the generation that fought so hard for free speech in the ’60s and ’70s were the pioneers of speech codes and PC restrictions in the ’80s and ’90s and that we still see today.”
You’re welcome, kids.