The University Record, February 8, 1993

Assembly considers changes in faculty anti-harassment policy

By Mary Jo Frank

If a Medical School faculty member says gays shouldn’t be allowed to serve in the military, could this be viewed as “creating an intimidating, hostile, or offensive environment” within the University?

What about an assistant professor of philosophy who offends students while discussing arguments on controversial topics related to race?

Those were a couple of the questions raised last Monday when the Senate Assembly discussed possible revisions to the Interim Policy on Discriminatory Harassment by Faculty and Staff in the University Environment that has been in effect since October.

A majority of the Assembly members decided in an informal vote to try to rewrite sections of the interim policy that raise concerns.

Provost Gilbert R. Whitaker Jr. said he hopes the faculty and administration can come up with a mutually acceptable policy to replace the interim policy.

“I don’t think we want the courts or the Equal Employment Opportunity Commission solving problems we can solve ourselves. We do have employment issues in mind,” Whitaker told the faculty.

The interim policy is a modification of another policy drafted by an 18-member committee in 1987–88 in response to campus racial unrest. Titled Discrimination and Discriminatory Harassment by Faculty and Staff in the University Environment, the policy was approved by the Assembly in January 1989.

In 1991 the sexual harassment section of the policy was separated from discriminatory harassment, approved by the Assembly, and is now part of University policy.

The faculty and staff discriminatory harassment policy was amended by the Office of the General Counsel last summer in light of a June 1992 U.S. Supreme Court decision in R.A.V. v. the City of St. Paul, Minn. That decision cast doubt on the legality of college hate speech codes directed only at certain categories of remarks.

Declaring that the First Amendment prohibits government from “silencing speech on the basis of its content,” the Supreme Court ruled that legislatures could not single out only racial, religious or sexual insults or threats for prosecution. Justice Antonin Scalia, who wrote the majority opinion, found the St. Paul ordinance to be “content-based discrimination.”

General Counsel Elsa Cole told the Assembly that she believes the interim faculty and staff discriminatory harassment policy is constitutional. She noted that Scalia specifically stated in the R.A.V. case that rules prohibiting derogatory insults and threats in the workplace are permissible.

In opening the discussion on possible revisions of the interim policy, Senate Assembly Chair Ejner J. Jensen asked the faculty to keep in mind the history of the interim discrimination policy; the Statement of Student Rights and Responsibilities, which was approved on an interim basis for one year by the Regents in November; and the Fundamental Tenets of Membership in the University Community, approved by the Assembly in May 1990.

“As we talk about this policy, it seems clear to me that at the very least we want to see that anything we put forward remains consistent with the spirit of the tenets document,” Jensen said, quoting, in part, the tenets statement:

“We seek a University whose members may express themselves vigorously while protecting and respecting the rights of others to learn, to do research and to carry out the essential functions of the University free from interference or obstruction.”

Among those objecting to parts of the interim policy was Robert L. Smith, professor of industrial and operations engineering. He is concerned about a section of the interim policy that says faculty members could be subject to discipline for discriminatory harassment if their behavior “has the purpose or effect of creating an intimidating, hostile, or offensive environment for academic pursuits, employment, housing, or participation in University activities.”

Smith concluded that even if faculty members do not intend to offend, “we are held basically to the most sensitive person within earshot of any comments that might be made. I think that is an extremely dangerous situation. For us as a university community to embrace something that is more restrictive than the freedoms that people have in downtown Ann Arbor violates what the University should stand for, which is the free marketplace of ideas.”

William D. Ensminger, professor of pharmacology and of internal medicine, said the majority of faculty members who were present at a recent Medical School faculty meeting oppose the interim policy as it is now worded.

A minority of the Medical School faculty said a policy might be useful if an infringement were to be met with education and enlightened discussion rather than discipline. Ensminger said his colleagues believe that only physical conduct should be included, not verbal, and that purpose or intent should be included, but not effect. Many Medical School faculty, Ensminger said, support philosophy Prof. Carl Cohen’s comments about the interim policy published in the Nov. 9, 1992, issue of the Record.

Elizabeth S. Anderson, assistant professor of philosophy, teaches a course that covers contemporary world problems, including affirmative action and other sensitive racial issues. In order to promote learning, she said, students must feel free to articulate views that may offend other students.

Because of the need to promote a free exchange of ideas, Anderson said she could not support parts of the interim policy.

She would favor some sort of code if it made appropriate distinctions between different forms of speech.

“In particular we have to make a distinction between remarks made in the spirit of inquiry and remarks made simply to harass, intimidate, insult or humiliate other people. If a professor calls upon students by the use of racial epithets, this certainly does not promote freedom of inquiry in any sense. That type of expression seems inappropriate,” Anderson said.

She urged formulating appropriate distinctions between the kinds of speech that should be protected and the kinds of speech that often have no positive content.

“We are not subject to the same freedoms of speech that ordinary people walking on the streets of Ann Arbor are. We have less freedom and for good reason. We are not permitted to plagiarize. We are not permitted to falsify data,” Anderson noted. Faculty need to recognize that goals of education require them to adhere to somewhat stricter standards than those held by people on the street, she added.

Kathryn Beam, associate librarian at the University Library, said responses she has received from campus librarians have been consistently against a policy. She suggested the faculty consider another means, something other than a code of behavior, to achieve the same ends.

“The need for forthrightness and honesty amongst ourselves and our students is what we want to maintain. Anything that sets the tone of a repressive code will inhibit this,” Beam added.

Among those speaking in favor of a faculty policy on discriminatory harassment was George I. Shirley, the Joseph Edgar Maddy Distinguished University Professor of Music. Such a policy enables the University to provide an atmosphere that fosters respect, Shirley said. It is very difficult to learn in an atmosphere of intimidation, he added.

Robin D.G. Kelley, associate professor of history and of Afroamerican and African studies, noted that racism exists on campus and that the policy “doesn’t come out of nowhere.” Addressing concerns about the difference between intent and effect, Kelley said, “Anyone can say they didn’t intend to be racist or sexist.”