A settlement in Speech First v. Khator et al. spells the end of the university’s sweeping anti-harassment policy, which a group of conservative students claimed would restrict almost all expression of their political beliefs.
The University of Houston’s contested policy described harassment as including “epithets or slurs, negative stereotyping, threatening, intimidating, or hostile acts, denigrating jokes and display or circulation (including through email or virtual platforms) of written or graphic material in the learning, living, or working environment.” While some of these actions might constitute harassment—for example, physically threatening a fellow student—others clearly do not. For example, “negative stereotyping” and “denigrating jokes” are clearly protected by the First Amendment.
The policy also noted that such offenses as “verbal and nonverbal slights,” “microaggressions,” and “annoyances” could result in punishment if occurring frequently enough. The policy even went so far as to note that “academic freedom and freedom of expression will not excuse behavior that constitutes a violation of the law or this Policy.”
Not only was the University of Houston’s definition of harassment untenably broad, but the policy also claimed jurisdiction over any interaction between “University-Affiliated individuals”—be it on or off campus.
In February, the nonprofit group Speech First filed a formal complaint with the Southern Texas District Court. On behalf of several conservative students, the group alleged that the policy violated those students’ rights based on their political affiliation. As the complaint read, one represented student “fears that other students will find his views ‘humiliating,’ ‘abusive,’ ‘threatening,’ ‘denigrating,’ ‘averse,’ or ‘intimidating’ and claim that his views ‘interfere with’ their performance or ‘alter’ their environment, especially if he shares those views passionately and repeatedly.”
On May 13, Judge Lynn N. Hughes granted a preliminary injunction preventing the policy’s enforcement. In the ruling, Hughes wrote that “the University cannot choose to abide by the First Amendment in the Constitution. It is not guidance—it is the law. Restraint on Free Speech is prohibited absent limited circumstances carefully proscribed in the Supreme Court.” On June 10, this injunction was followed by a settlement in which the University agreed to permanently remove the challenged portions of its policy—and pay Speech First $30,000 in legal fees.
This case is a decisive victory for college students’ First Amendment rights. Universities frequently use overly broad and unconstitutional anti-harassment policies to chill unpopular speech. The settlement in Speech First v. Khator et al. shows yet again that public universities’ anti-harassment policies must comply with the First Amendment and that schools must limit themselves to punishing “Davis Standard” harassment—unlawful harassment which is “so severe, pervasive, and objectively offensive” that it denies students equal access to educational opportunities.
As Cherise Trump, Speech First’s president, said of the recent settlement, “Universities across the country should be put on notice that overbroad policies designed to chill student speech will not be tolerated. Every institution of higher learning should protect freedom of expression, freedom of thought, and the open exchange of ideas, not muzzle students with speech codes that disregard federal guidelines and the U.S. Constitution.“
Overturning bad harassment policies makes universities better for all students. Real acts of unlawful harassment can still be sanctioned while allowing students of all political stripes to debate and express themselves. While Speech First represented a group of conservative students, it is worth noting that speech-chilling anti-harassment policies have also frequently targeted left-wing groups—often pro-Palestine organizations accused of antisemitism.
Universities cannot expect to be places of learning and intellectual exploration if students are implicitly threatened with investigation and punishment for speaking about their unpopular beliefs.