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Cracking the Code

by Jason J. Bach

orever etched into the history of the University of Nevada, Las Vegas will be August 17, 1998—the day that the William S. Boyd School of Law opened its doors as the Silver State’s first public law school. It was a day that many Nevadans had been working toward for years, and finally it had come to pass. It was seen as a way to afford citizens of Nevada the ability to attend a law school without traveling across state lines, a way to provide the state with an excellent pool of lawyers and judges and a way to assist UNLV in its long quest for the heights of academic prestige.

From within this frame of reference, it was difficult for some at UNLV and in the community to understand why a group of students at this new institution would so soon attack the university over problems with its student conduct code. For others, however, this was precisely the sort of legal critique they had intended a law school to bring to the community.

Formed in October last year, the Boyd School of Law Chapter of the American Civil Liberties Union was one of the first student organizations born on the campus. Just three months later the chapter released a letter to Dr. Robert Ackerman, UNLV’s Vice President for Student Services, outlining various concerns with the university’s current student conduct code.

A number of First Amendment and due-process shortfalls written into the 10-year-old code were the letter’s prime concerns. Others centered around statements in the code so ambiguous that five reasonable readers could deduce five different interpretations. It seems clear that the authors of this code either were not appreciative of the civil liberties guaranteed to students of public universities, or simply felt that the university’s interest in control outweighed those rights.

A public university certainly has a legitimate interest in ensuring that all members of its community are safe. A public university also should have the ability to maintain and enforce various rules and regulations reasonably related to protecting that interest. However, problems surface when universities carry their authority too far and neglect to afford their students due process, or when schools sanction students for acts that are constitutionally protected. This is an all-too-common problem, as members of the UNLV community have recently learned.

UNLV is currently operating under a student conduct code that raises many constitutional red flags. For example, among the various acts that violate the code is "the repeated use of obscene or abusive language in a public setting where such usage is beyond the bounds of generally accepted good taste." The free speech clause of the First Amendment was adopted to protect speech in a "public setting" that may be "beyond the bounds of generally accepted good taste." If all people considered all speech to be in "good taste," there would be little need for such protections. The question must be asked, are the administrators at UNLV in a position to determine what language is "obscene or abusive" or "beyond the bounds of generally accepted good taste?" Public university administrators should not be making those determinations on my, or any other student’s, behalf.

Other descriptions of prohibited acts are ambiguous, leaving open the possibility that purely innocent acts may be interpreted as a violation of the code. One such prohibition is "creating a situation which produces mental or physical discomfort, injury or stress, or embarrassment, or ridicule." Many acts or words could cause another to experience mental discomfort, stress, or embarrassment. Student A, who decides to end a romantic relationship with Student B, may in the process cause Student B to feel each of these discomforts. But is this the sort of conduct a public university should police? While UNLV administrators would claim that this clause would not be interpreted to apply to the above scenario, the problem is that the present language of the code would allow for such interpretation.

Similar ambiguities are present in the following prohibited act: "any actions, including those of a sexual nature or involving sexual activities, which are intimidating, demeaning, harassing, coercive, or abusive to another person, or which invade the right to privacy of another person." The code goes on to state that whether a violation of this policy has occurred, is to be based on the opinion of "another person." What the code does not make clear, however, is who that "other person" is. With this omission, the code ignores the rights of consenting adult students to participate in many acts, sexual or otherwise, which "another person" might find either intimidating, demeaning, harassing, coercive or abusive. Again, university officials would probably claim that they would never utilize this policy in such an ambiguously broad manner. As presently written, however, the code would permit it.

In addition to problems of ambiguity and lack of precision, the code attempts to go too far. For example, the code allows UNLV to sanction students for their actions that are performed off-campus. While this provision of the code would allow the university to take action for a student’s criminal conduct committed while away from campus, it would also apply to various actions if "the good standing of the [university] community is put at risk." The meaning of this opinion-based statement is nearly impossible to decipher, granting the university an open invitation to apply it to virtually any situation. While the code also limits the university’s ability to discipline "constitutionally protected" off-campus conduct, this provision, like others discussed above, would require that we simply trust university officials with determining the constitutionality of various issues.

Another example of the code’s questionable boundaries comes from a clause that states: "Students can be held responsible for the actions of their guests who visit campus facilities, such as residence halls and athletic facilities." This guilt-by-association philosophy seems to apply to students, even if they have no knowledge, and did not participate in the actions of their guests. Imagine a scenario involving a UNLV student, together with a non-student, attending an event at Sam Boyd Stadium, a UNLV athletic facility. While the student and non-student are temporarily separated, the non-student becomes involved in an altercation with another event-goer. Under the present policy, the student would be held responsible for the non-student’s altercation. The code seems to indicate that neither UNLV’s police department nor its budget is sufficient to allow for legal action against non-students, who themselves should be held responsible for their acts. I would suggest that UNLV has the means to hold students and non-students accountable for their actions, without making the unwitting student the scapegoat for someone else’s irresponsible behavior.

Yet another problem with the present code is its failure to afford full due process in disciplinary proceedings. Public institutions have a responsibility to ensure that all students receive due process in disciplinary matters, and the code does, for the most part, afford some level of due process. The code specifically states that "in all instances of discipline, the student has the right to due process" and "fundamental and procedural fairness." In certain areas, however, the code falls short. Due process and fundamental fairness in an adversarial disciplinary process should include a right to counsel and a hearing. But under the current code, students at UNLV are not always afforded these fundamental rights.

The current code allows an accused student to be accompanied to a hearing by an attorney, or other advisor, only if notice is given to the university at least five days prior to such hearing. If the student is unable to locate an attorney or advisor five days prior to the hearing, that student forfeits his or her right to be accompanied by any advisor. Particularly when contrasted with the substantial resources, including attorneys, available to the university at all times, this limitation on student rights is troubling. A student’s right to the advise and counsel of an attorney is a fundamental right which provides some balance of fairness, a right that should never be forfeited.

Another due process deficiency exists in the code’s "emergency" provisions. Under the emergency clause, the president of the university may order the immediate suspension of a student for an unspecified interim period of time, if a students commits various acts. These acts include committing "an offense of such a serious nature as to adversely affect the student’s suitability as a member of the community," or "interfere with the educational process or orderly operation of the university." While the code states that the president may invoke this clause if a student has committed one of these acts, the clause does not provide a process for determining the weight of evidence against the accused student. This is especially problematic when the student may be suspended for an unspecified interim period of time pending a disciplinary hearing. Theoretically, this clause could allow a student to be suspended indefinitely based on a mere allegation, without a hearing or a specified time in which a hearing must be conducted.

Many of the problems in the UNLV Student Conduct code originated in Chapter 6 of the University and Community College System of Nevada (UCCSN) Board of Regents code, "Rules and Disciplinary Procedures for Members of the University Community." This umbrella code applies not only to UNLV but to the University of Nevada, Reno and to each of Nevada’s community colleges governed by the UCCSN. While students at these other institutions may or may not find language similar to the UNLV code at their institution, all rules and procedures prescribed by the UCCSN code still apply to those students. Any changes to the UNLV code, which do not conform to the UCCSN code, would therefore require subsequent changes to the UCCSN code.

The questions raised by the Boyd School of Law Chapter of the ACLU have not gone unnoticed by UNLV officials. Vice President Ackerman and others deserve substantial credit for acting quickly to begin the process of redrafting the 10-year-old student conduct code and the UCCSN code. A committee made up of UNLV students, faculty and administrators is currently reviewing both codes. Any proposed changes by the committee would require the approval of the Board of Regents prior to taking effect. Both the ACLU and I are very appreciative of being invited to participate closely in this process. I am optimistic that a new code will be drafted and adopted that respects all constitutional rights of students, while maintaining the university’s ability to perform its important educational duties. NJ

Jason J. Bach is a second-year student at UNLV's William S. Boyd School of Law, where he is the president of the Boyd School of Law Chapter of the American Civil Liberties Union.

‘Freedom’ Through Oppression

Unfortunately, UNLV is not alone in drafting coercive speech codes. Since the late 1980s campuses across America have been the scene of broad and blatant assaults on not only First Amendment liberties but the core liberal arts values of academic freedom and free inquiry.

Commonly justified as efforts to outlaw discourse that creates "a hostile environment," these speech codes are effectively structured to forbid and punish the expression of controversial and unpopular ideas that implicitly dispute current campus orthodoxies.

Common to the content of the speech codes are rules that let anyone who wants to feel aggrieved or injured become the arbiter of whether or not "speech crimes" have occurred.

For example, the City University of New York speech code announces that "sexual harassment is not defined by intentions but by impact on the subject." This effectively means that "the accused is guilty if the accuser believes him to be guilty," points out Herbert London, a dean and a professor of humanities at New York University.

At Bowdoin College, talkative devotees of some of the great literature of classic antiquity could end up charged with speech crimes: Bowdoin’s broad definition of harassing speech includes "telling stories of sexual assault which minimize or glorify the act." Woe unto any art prof who dares wax too enthusiastic over Picasso’s Rape of the Sabine Women, or Jacques-Louis David’s L’enlèvement des Sabines. Under these rules, eager victims can be as unreasonable as they wish; a speaker’s intentions are irrelevant. "No one is entitled to engage in behavior that is experienced by others as harassing," says Bowdoin.

The University of Connecticut’s code bans "treating people differently solely because they are in some way different from the majority." Not only is this standard incoherently vague, but it’s another invitation to grievance-farming. The UConn regime has even come up with a way to embellish its evil: Hyper-sensitivity is explicitly protected. "Attributing objections to … ‘hypersensitivity’ of the targeted individual or group" is itself a prohibited wrong. So even should you believe someone is overreacting to an innocuous remark, saying so merely proves your guilt.

These codes all share a common premise: "freedom" for some people requires that freedom of speech for others must be restricted. It’s a deeply patronizing stance, since students officially classified as "disadvantaged" are held to be incapable of participating equally with other students.

Disturbingly, both classes of students—the "disadvantaged" and the supposedly "advantaged"—are nowadays usually determined according to criteria of blood, race and history.

Of course in our increasingly diverse communities today, it often is difficult to tell at first glance whether the person before you has been classified by our new would-be gauleiters as advantaged or disadvantaged. In the same way, therefore, it is not immediately clear whether or not a given statement will or will not constitute a speech crime.

In order that everyone be equally able to participate in campus discussions, therefore, perhaps we should extend the principles that provide good order in campus parking matters into the area of this question. Just as windshield and bumper stickers allow campus cops to keep good order amid the parking lots, so certainly would a requirement that everyone on campus wear appropriate emblems upon their persons assist the PC police efficiently identify everyone by blood, race and history.

Of course, all this might end up a bit controversial. In Europe a few decades ago, cloth stars were popular for this purpose.

—NJ


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