The Legality of Civility
Public institutions in particular must find the narrow path between the uncivil and the unconstitutional.
By William E. Thro
Higher education wants civility on campus. Unfortunately, civility is difficult when there is constant interaction among students, faculty, administrators, and support staff, as well as alumni, donors, independent contractors, and visitors. The higher education community of the early 21st century reflects the diversity of society, not only in terms of race, gender, and sexual orientation, but also in terms of educational attainment, job security, political ideology, religious belief, and generational perspective. A university will have workers without a high school diploma and professors with two doctorates, hourly at-will employees and tenured faculty, Marxists and libertarians, Christian fundamentalists and militant atheists, people who were born before World War II and people who were born after the end of the Cold War.
Moreover, the rise of e-mail and social networking tools like Facebook and Twitter allows individuals to share their most profound thoughts or their irrational rants with the entire campus and the world beyond. Given myriad viewpoints, personal agendas, characteristics, and easy methods of communication, it is inevitable that misunderstanding, miscommunication, and some degree of conflict will arise. It is quite easy for any college or university to fall into the abyss of incivility.
Yet, as all higher education business officers strive to help their colleagues avoid being uncivil, those at public institutions face an additional challenge. Unlike independent institutions that generally are restricted only by contractual arrangements such as employee, faculty, and student handbooks, public institutions are subject to the federal and their respective state constitutions as well as certain state laws governing behavior by public employees. The legal reality for public institutions is clear: Restrictions on personal interactions and behavior that promote civility may well trample the constitutional rights of students, professors, or other employees. In their efforts to avoid the abyss of incivility, public institutions can easily fall into the abyss of unconstitutionality.
Public institutions must navigate a narrow path between the uncivil and the unconstitutional. Administrators— including business officers—must develop a campus culture where courtesy and tolerance are the norm, but where the fundamental rights of American society receive respect. The common good is sometimes subordinate to individual freedom. While the line between constitutional and unconstitutional behavior is usually dependent upon context, several general principles apply.
First, there is a constitutional right to be obnoxious, offensive, or disrespectful. The courts have consistently upheld the rights of individual students and student groups to say and do things that are offensive to the university administration or to a majority of the campus community. While the unique nature of higher education leads to different constitutional rules concerning race, the Supreme Court has never said that public institutions may impose greater restrictions on expression. To the contrary, in some instances, the court actually requires state universities to subsidize religious expression directly, a result that would be unthinkable outside of the higher education context.
Administrators— including business officers—must develop a campus culture where courtesy and tolerance are the norm, but where the fundamental rights of American society receive respect. The common good is sometimes subordinate to individual freedom.
Second, because academic freedom is a special concern of the First Amendment, faculty arguably enjoy greater constitutional rights within the academic sphere. Indeed, the American Association of University Professors is pursuing a legal strategy of arguing that professors at public institutions have greater free speech rights than ordinary public employees. Similarly, public university professors asserted a constitutional right to view sexually explicit images on their university-owned computers. A sharply divided federal appellate court ultimately rejected the claim, but the dissenting judges and many legal scholars accepted the basic constitutional premise.
Third, in some circumstances, a public institution is obligated to allow the campus community, and perhaps even outsiders, to use its property or its means of communication to express messages that are offensive to many. Under the Supreme Court’s public forum doctrine, a state institution’s practice of allowing students and outsiders to engage in expressive activity may preclude any sort of viewpoint restriction. Moreover, there may be some spaces, such as parks or certain sidewalks, that are available for free speech regardless of what the institution has done in the past. While the university may be able to restrict the type of expressive activities that take place on its property, it may not restrict the viewpoints expressed. Of course, much of the uncivil expression may come through Web-based technology, where the institution’s ability to regulate is severely limited.
To be sure, not all expressive activity is protected by the Constitution. Behavior that amounts to racial or sexual harassment, or actions that are designed to intimidate others, likely to cause imminent illegal activity, or substantially disrupt the classroom or workplace can be—and should be—punished by public institutions. Indeed, because harassment is a form of discrimination, the Constitution’s Equal Protection Clause as well as Title VI, Title VII, and Title IX require public institutions to punish racial and sexual harassment. Yet, speech or conduct that falls far short of harassment, intimidation, or disruption can still cause a firestorm of controversy. Simply prohibiting unprotected expression does not guarantee civility.
Bridging the Abyss
Navigating the narrow path that runs between the abyss of incivility and the abyss of unconstitutionality is difficult. Nevertheless, there are things that college and university business officers may do to assist their institutions.
1. In developing policies to promote civility or to regulate expressive activity, consult with the institution’s attorneys. Although it may not seem like it at times, lawyers really can be your best friends. The federal reporters contain numerous cases where administrators did not bother to consult their lawyers, but did something simply because it seemed right or a good idea.
2. Recognize that a vigorous marketplace of ideas does not necessarily lead to incivility. If expression is uncivil, the solution is more speech, not a limitation on existing speech. Reinforcement of an argument is more effective than raised voices. Indeed, if all feel that they can express their ideas and if people see hateful or irrational ideas dismissed by others, they will see less need to aggressively promote or defend their own speech. Incivility results only when speakers fear that they will be silenced or listeners fear that idiocy will be accepted.
3. Lead by example. At my own institution, the president and his top administrators, including the university business officer, literally have transformed the mission and culture of the university. If the administration and the senior faculty practice civility and implicitly demand it from others, then change will follow.
While narrow, the path between the uncivil and the unconstitutional is not an impossible one to find. Institutions should promote civility, but should respect the constitutional rights of all segments of the campus community.
WILLIAM E. THRO is university counsel at Christopher Newport University, a public liberal arts university in Newport News, Virginia. From 2004 to 2008, Thro served as solicitor general of Virginia. (The views expressed in this essay do not necessarily reflect those of Christopher Newport University or the attorney general of Virginia.)
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