Iowa State recently received criticism for several policies because of the "red-light" rating given by the Foundation for Individual Rights in Education, a free-speech advocacy organization. FIRE is especially critical of Iowa State's policy on discrimination and harassment, claiming that it could potentially violate free-speech laws.
"Essentially, the university is reserving itself the right to punish speech that doesn't meet the legal definition of harassment," said Samantha Harris, the leader of FIRE. "It means that it's protected by the First Amendment, and beyond that, it's not even telling students what speech is. It's saying that 'we reserve the right to punish speech we think is inappropriate in the educational environment, even if it doesn't fit the legal definition of harassment.'"
Iowa State's Discrimination and Harassment Policy states, "While grounded in state and federal non-discrimination laws, this policy may cover those activities which, although not severe, persistent or pervasive enough to meet the legal definition of harassment, are inappropriate and unjustified in an educational or work environment. This policy will be interpreted so as to avoid infringement upon First Amendment rights of free speech. ... A determination as to whether discrimination or harassment has occurred will be based upon the context in which the alleged conduct occurs."
The student handbook also defines what is considered harassment by the university, and students are subject to discipline by both the university policy and the ISU Student Disciplinary Regulations Code of Conduct.
Section 4.2.7A of the Code of Conduct states, "Engaging in First Amendment protected speech activities shall be considered acts done with a legitimate purpose."
However, it seems to contradict itself later in the same section, instead stating that whether or not it is considered harassment is purely circumstantial.
According to 4.2.7B(2), "Engaging in First Amendment protected speech activities may not rise to the level of harassment, depending on the circumstances."
However, one section specifically, has raised concern, where the policy states, "While grounded in state and federal non-discrimination laws, this policy may cover those activities which, although not severe, persistent or pervasive enough to meet the legal definition of harassment, are inappropriate and unjustified in an educational or work environment."
The policy is essentially claiming it can discipline students for what is not necessarily legally defined as harassment by Iowa law.
"[FIRE didn't] like that language, but we have to manage a university community," said Keith Bystrom, a member of the university council regarding FIRE's reaction. "We also have the discrimination laws that tell us we have to manage sexual harassment and other types of harassment in our community, and we want to have policies that inform students and employees about what harassment will be considered to be violative and not tolerated."
Although it is narrow, there is a gray area that lies between what the state of Iowa considers harassment — therefore unprotected by free-speech laws — and what ISU considers harassment and will punish.
"The federal courts have built up some standards as to how far the government can go in regulating the content of speech before it violates the First Amendment," said Frank LoMonte of the Student Press Law Center. "Harassment is one of those gray areas where it's possible for speech to cross over from constitutionally protected to unprotected, depending on how often it is repeated, what the context is, who the target is and so on."
It's unclear both to the student body and university administrators what exactly falls into this gray area.
"We certainly may regulate something that is not in violation of Iowa's criminal harassment statute," Bystrom said. "I wouldn't agree that the activity would be free speech without examining each individual situation."
However, he did acknowledge that the policy could potentially violate free-speech laws in the right circumstance.
"It may be possible," Bystrom said. "We do take the First Amendment and free-speech rights of individuals very seriously and we're constantly answering questions and allowing people to speak on campus — and do things on campus that others complain about."
Michelle Boettcher, assistant dean of students, also acknowledged that the policy could, in fact, violate Iowa law.
"The short answer is yes," she said. "Just because you're engaging in free speech doesn't give you the right to say anything, anytime, anyplace, but it does give you the right to voice your opinion if it does not threaten or harm any person."
Harris claims that the ambiguity regarding the policy could leave students at a loss when trying to decide if their actions will lead to disciplinary action by the university.
"If they read the policy, I think it would be to refrain from anything that might be controversial or may offend someone because there's no way to know what might be punished by this policy," Harris said. "We call that the chilling effect."