FOCUS: Racial Harassment Policies

Two hundred years ago, the nation's founders amended the United States Constitution to prohibit government from passing laws which would abridge an individual's freedom of speech. Three years ago the University implemented a racial harassment policy similar to one that a Michigan state court has since found violates that fundamental freedom. Now, as President Sheldon Hackney struggles to develop the "right" harassment policy, he faces the same dilemma as numerous university administrators across the country -- should free expression be preserved at the cost of injury to some, or should individuals be protected from injury at the cost of abridged speech? · Since promising University Council last spring he would change the outdated policy, Hackney has released two proposed definitions of harassment. The first, released in October, radically changed the definition of harassment by narrowing its scope. The second proposed definition, which was presented to University Council last month, eases off the narrow definition, forming a bridge between the October proposal and the current policy. Hackney plans to present Council with a new proposal this week. Throughout the year-long debate, students and faculty have repeatedly focused on the specific wording of the policy, with many campus discussions centering on pure semantics rather than the effects of the code. One controversial inclusion in Hackney's two proposed definitions is the concept of "intent," which some faculty and students said puts an "unfair burden of proof" on the victim. The October definition said an action would constitute harassment only if it had "malicious intent." And the latest definition listed "intentional interference with academic or work status" or "intentional stigmatization and villification" among the six behaviors that would be considered harassment. Graduate student activist Wayne Glasker said during one of the debates that it is often difficult to prove the intentions of an act, making the harassment policy useless. "There can be instances when unintended harassment or abuse may occur," he said at last month's Council meeting. But others say inclusion of intent as a component of harassment is important to protecting free speech on campus. City Planning Professor Anthony Tomazinis said at last month's Council meeting that proving intent of an act protects alleged perpetrators from punishment for non-harassing behavior. Tomazinis said if the term "intent" is removed from Hackney's policy, people could become subject to unfounded accusations. Former PPU Speaker Debra Cermele said yesterday that after a session of debate on the University's racial harassment policy, most of the 65 PPU members voted in favor of a plan that would uphold Hackney's strict intent clause. She also said most of the five "parties" in PPU submitted plans that included the clause. "The biggest debate was about intent," Cermele said. "It is unusual that PPU would come to a consensus, but it was voted by a majority that intent must be part of the official definition." Many PPU members supported another controversial tenet of Hackney's October plan which said the harassment must be directed at the individual it offends. The third stipulation said the act must constitute "fighting words" or their non-verbal equivalents. Hackney said last week he has not yet settled the question of intent or decided if he will include the term in the definition he will present this week. Others on campus, while conceding that the campus debate is healthy, have speculated that the actual wording of the code will not effect behavior on campus in the long-run. "In the end everything will be done case by case," United Minorities Council Chairperson Nalini Samuel said. "The message to students is that they will be protected. That's what the policy needs to exude." But Assistant to the President Stephen Steinberg, who is working on the policy with Hackney, said clearer wording of the policy will help to outline accepted behavior on campus. "A clear policy will help all members of the University community behave in ways closer to the ideals of the University," Steinberg said. "It won't change people's behavior, but it's an important communications mechanism." Law School Dean Colin Diver, however, said the wording of the policy could define how students and faculty members behave on campus. "I think actions will change, not simply because of the wording of the policy, but because of the use of the policy to hear certain cases," Diver said last week. "The language of the policy becomes critical because it becomes the basis of whether students can be punished or not." · The debate over how far to restrict free speech continues around campus. To students, staff and faculty who are willing to risk insult and harm for the sake of open discussion, the First Amendment is the primary value in developing the policy. Hackney himself has said repeatedly that he feels open expression rights take precedence at the University. But for the many others who believe the University's role is to always shield its members from harm, the key issue is an individual's protection from possible injury. Steinberg said the administration has tried to come to terms with the two ideas. He said the new guidelines will attempt to "integrate" the concepts of free expression and non-harassment, rather than just form a compromise between them. Steinberg added that the seemingly contrasting ideas may not be as conflicting as people have argued, saying they both actually center on freedom of expression. He said the policy will make it easier for individuals to speak out without fear of being harassed. "An academic community rests on the notion of free and open debate in the marketplace of ideas," Steinberg explained. "It is not free and open if everyone who's a member of the community can't participate." Some University professors, however, have maintained that a harassment policy which in any way limits speech goes against the ideal of a University -- that academic institutions should at least uphold the freedoms of expression which are fundamental to the Constitution. "The University is a part of the United States of America where we have a Constitution that guarantees free speech," Physics Professor Michael Cohen said last week. "The University should be a place that has at least as much free speech as the country, if not more." Cohen, who instigated debate on the issue last year, and others hold that universities are established to allow for debate -- in any form -- in order to encourage the discovery of new ideas. They say broad harassment policies, such as the current one, prohibit that debate and thereby limit new intellectual discoveries. "The purpose [of a university] is not to create a 'civil environment' -- we try to insist on that, but it's not our reason for being," Diver said. "We have to have full and robust discussion and debate. We have to tolerate both ideas and language that a lot of people are going to find quite offensive." Diver, who has stood on the side of open expression throughout the entire University debate, said he supports the specific criteria set out by Hackney's October proposal. The narrowness, Diver said, may allow for some hateful speech, but will protect harmless language that would otherwise be cut out entirely. But the voices in favor of a narrow harassment policy are often drowned out by those who think the University does too little to protect minorities from insult and injury. They say racial harm should not be tolerated at a University, claiming "harassment" takes away their rights to freely express themselves. Gloria Gay, assistant director of the Penn Women's Center, said the administration is moving backwards in its efforts to find the best harassment policy for the University. She said narrowing the policy's scope further burdens the victim of harassment. "The point of it is that you don't victimize the victim, so you try to be inclusive and let people have due process," Gay said. "You don't narrow something so you exclude people from using the policy if they need it." "My interpretation is that nobody has the right to be saying negative things to other people," Gay said. UMC Chair Samuel said last week she also supports a broader scope for the harassment policy, pointing out that the University's Guidelines on Open Expression sufficiently protect people's First Amendment rights. "We have an Open Expression policy to protect free speech," College senior Samuel said. "This one should lean towards protecting minorities. It will balance out then." Samuel said the policy should make it easy for victims to bring perpetrators up on charges. She said many minority students are reluctant to claim they were harassed because of the difficulty in proving so. "The person being harassed should be able to say he or she was being harassed," Samuel said. Another faction throughout the year-long debate has questioned the need for a harassment policy at all, pointing out that most of the restrictions under the code are listed in other University policies or in state and federal laws. "[The parts of the policy that overlap with existing codes] merely dignify the policy and make it look like it's performing functions already performed," Cohen said. "The purpose of the policy is to prohibit free speech and to pretend it is to prevent illegal discrimination is a fraud." · But regardless of their side in the issue, most people agree that developing the right type of harassment policy is not the solution to racism on campus. Some faculty, staff and students say the emphasis should not be on guarding speech or punishing ignorance, but on bringing all members of the University into the realm of participation. "As hard as it is to set up rules to say you cannot act a certain way, it's easy compared to finding ways to increase the participation of blacks in the community," Communications Professor Carolyn Marvin, who teaches a class on free expression, said last week. "We shouldn't deceive ourselves into thinking that the appearance of politeness is the way to solve problems." Marvin, who made headlines last year for publicly burning an American flag to support her First Amendment freedom of expression, said more energy should be spent on finding ways to increase minorities among students, faculty and administrators, rather than on limiting speech. And Black Student League President Jessica Dixon said yesterday the University should make a greater attempt to educate students and faculty members about different races and cultures. She said education is the best way to prevent racial harassment. "A lot of times people are accused of being racist, but they're not racist, just ignorant," College junior Dixon said. "I think the University needs to make a bigger effort to educate everyone about racial diversity, cultures, different peoples' standards and norms."

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