Transcript Civility: What to do when it is not taught at home.

The Community College Conference on Legal Issues
January 29-31, 2012
Denise Wallace, Esq.
General Counsel
Palm Beach State College
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Sometimes yes.
Sometimes no.
At all times.
Never in my classroom.
Only when it suits my purposes.
Rights? What rites? Oh, those writes. All rite.
Students arrive at college holding attitudes
reflective of their families and communities. If
we hope that they will graduate as
enlightened
souls
committed
to
the
improvement of intergroup relations, it is
useful to understand the thoughts and
feelings that they bring with them, which are
significantly affected by the dramatic changes
that have been occurring in our dynamic
society. (Marcus, 1996, p. 1)
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What is civility?
“Home Training”
 Manners
 Knowing how to act around others.
 There are societal expectations how
one behaves in the company of others.
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If you are a minority - Black American,
Indigenous American, Hispanic descent
- the way these groups were/are
expected to behave was/is always seen
through the lens of the majority culture.
Failure to act accordingly was rewarded
with disparate jail sentences, lynching,
derisive comments such as being
“uppity”, or “arrogant” or “not knowing
one’s place.”
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For women, we were subjected to
being called “not ladylike”, “too
aggressive” or a “bitch”, which used to
mean that we acted too much like a
man when it was applied in the
business context. Today bitch is used
by some people as a term of
endearment.
 Other examples (audience)
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No consistent definition.
Nebulous term – one person’s act of civility can be
another person’s perception of incivility
“The term civility involves the displayed moral
reaction to an incident by an individual and the
judgment of that reaction from another (or others)
through their own moral world view.” (Baker, 2010)
Merriam-Webster (2009) defines civility as:
“civilized conduct; courtesy; politeness; and a
polite act or expression.”
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A civility code is any college or
university rule or regulation that
restricts speech or expressive conduct
of college students.
 Synonymous with “speech code” or
“hate speech code”
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Codes of Conduct:
What purpose do they serve?
Speech codes became popular in the 1980s
and 1990s to provide a mechanism for
colleges to embrace diversity (increased
enrollment of minorities, women, gay and
lesbian students, and other disenfranchised
students) by curtailing verbal speech or
conduct that would create an offensive or
intolerant college environment.
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What areas of campus life are
regulated by speech codes?
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Dress codes
Sexual Harassment/Harassment
Code of Student Conduct
Civility Codes
Note: All of these codes can have First
Amendment implications.
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Any manner of interacting or
behaving that demonstrates disregard
for others. (Baker, 2010)
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How do we instruct students on the
expectations of working and thriving in a
civilized society if we cannot properly instruct
them on how to say and do things in
“civilized” manner in a college environment?
As educators do we have a duty to educate
and train students in other areas, not just
their academic subjects?
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“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tossed to
me,
I lift my lamp beside the golden door!”
Emma Lazarus, New Colossus (1883)
Inscribed on the tablet of the Statue of Liberty
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We are like the Statute of Liberty. We
take all. And in doing so, it creates
unique challenges for us.
 The demographics and skill levels of
our students are varied.
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What is meant by skill levels?
 How do these skill levels (or lack of
certain skills) relate to the need for
civility codes?
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Should the mission of the public community
college (work force development) create an
exemption for complying with certain First
Amendment rights?
Why/Why not?
What about specific programs that require
students to dress and behave in a certain ways,
i.e. participation in clinical programs, nursing
and health care programs in conjunction with
affiliation agreements, certain vocational
programs (auto, welding, other trades)?
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Are they legal?
 Are they necessary?
 Do they do any good?
 What are the options?
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 What
is causing the lack of civility
among our students?
 What is causing the lack of civility
among faculty and colleagues?
 How do we address the lack of
civility?
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What about the college’s responsibility to other
students who want to learn?
What about behavior that constitutes a direct,
immediate and imminent threat to the safety of
others?
What about the instructor’s academic freedom
rights?
Is a student who is disruptive in class accessing her
education in a manner that will allow her to obtain
the best possible academic grade?
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In Morse v. Frederick, 551 U.S. 393 (2007), the
Supreme Court held that public schools [high
school] officials can discipline students for
disruptive conduct that interferes with the
educational environment. (BONGs 4 Jesus case)
There is no prohibition on college instructors
disciplining students for behavior that disrupts
the classroom environment.
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First Amendment (Government) - public
educational institutions are prohibited from
interfering with the freedom of speech.
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Do you mean that a student can say anything,
in any despicable, disrespectful manner in my
classroom, on campus, in the residence halls,
at an athletic event or at a college sponsored
lecture series?
Simple answer: Yes
Legal response: That depends.
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Depends on what?
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What is said, how it’s said and if there are any
physical actions that accompany the words.
Speech broadly defined includes what you wear,
say and believe and how the message is
disseminated. It can be done verbally, in writing or
through another medium, such as paintings,
pictures, art work, film, social media, symbolic acts
(flag burnings) and silent protests (African
American students or athletes refusing to stand for
the Pledge of Allegiance or the National Anthem).
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There are narrow exceptions of the types of
speech that are not protected:
◦ “Fighting Words” – speech that incites
reasonable people to immediate
violence (face-to-face confrontations
that lead to physical altercations)
◦ Harassment
◦ True threats and intimidation
◦ Obscenity
◦ Libel
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Good.
That means our code of student conduct is fine
and I can kick the student out of class.
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Not necessarily. It depends upon the facts
and how the code is worded.
Codes of conduct that are vague, ambiguous
or overbroad no matter how well intentioned
may still be unconstitutional.
Even if a
student has never been subjected to
discipline under the code. The code on its
face (as written) can result in litigation (facial
challenges).
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What Factors Can Lead to Litigation?
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Codes that have a chilling effect on the student’s
right to free speech. The student is afraid that if
she does exercise her freedom of speech, she will
be subjected to disciplinary action.
Codes that are vague and do not give “fair warning”
to the student of what is prohibited and what is
permitted conduct.
Codes that give arbitrary discretion of enforcement
to administrators.
Codes that are vague, which means that a person
of common intelligence would have to guess at
their meaning.
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“After what happened in Arizona and at Virginia
Tech (again), I will not have a student wearing a
tee-shirt in class that has a picture of an AK 47 and
says, ‘Fail me at your own risk!’”
“If my college had no speech codes, things would
be wild.”
“Besides, many of our students need structure.”
“Students need to learn how to behave in a given
career field.”
“In our nursing program, we are affiliated with
private hospitals that want their employees to
behave and dress in a respectable manner.”
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Common Concerns from Administrators:
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“The profanity and the disrespect many of our
students exhibit in the classroom will not be
tolerated in the workplace. “
“I will not have a student in my class that makes
overt and hostile racial or sexually derogatory
comments about me or my students”.
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“True threats” - defined as “those statements
where the speaker means to communicate a
serious expression of an intent to commit an act of
lawful violence to a particular individual or group
of individuals.” Virginia v. Black, 538 U.S. 343, 359
(2003) (court upheld Virginia law relating to cross
burning).
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“Incitement "or “fighting words”, although not
expressly defined by the Supreme Court, in
the First Amendment context, the Court has
set forth a standard. The Court held that a
state may not “forbid or proscribe advocacy
of the use of force or law violation except
where such advocacy is directed to inciting or
producing imminent lawless action and is
likely to incite or produce such action.”
Brandenburg v. Ohio, 395 U.S. 444, 447
(1969) (emphasis in original).
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“Incitement” or “Fighting Words”
Example of what is not incitement: A man yells
during an anti-war demonstration, “We’ll take the
fucking street later.” The Supreme Court found
that the speaker did not intend to incite or produce
immediate lawless action. “At worst, it amounted
to nothing more that advocacy of illegal action at
some indefinite future time.” Hess v. Indiana, 414
U.S. 105, 108-09 (1973).
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“Obscenity” is not protected by the First
Amendment. Obscene materials must “depict
or describe sexual conduct” and must be
“limited to works which, taken as a whole,
appeal to the prurient interest in sex, which
portray sexual conduct in a patently offensive
way, and which taken as a whole, do not have
serious literary, artistic, political, or scientific
value.”
Miller v. California, 413 U.S. 15
(1973).
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Profanity - “Isn’t some of the stuff these kids say
in my classroom, all of this cussing and what
not, obscenity?”
No. Profane or vulgar language, by itself, is not
necessarily obscene. Profanity, while it may be
considered disrespectful by some, is protected by
the First Amendment.
An individual was
convicted in California of wearing a jacket that
said “Fuck the Draft” in a courthouse.
The
Supreme Court ruled that message, although
vulgar, was protected speech.
Cohen v.
California, 403 U.S. 15 (1971).
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Student
newspaper
article
entitled
“Motherfucker
Acquitted”
and
political
cartoon depicting policeman raping the
Statute of Liberty is protected speech.
“The mere dissemination of ideas – no matter
how offensive to good taste – on a state
university may not be shut off in the name
alone of ‘conventions of decency.’” Papish v.
Board of Curators of the University of
Missouri, 410 U.S. 667 (1973).
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Hinds Community College has a policy that
subjected students to disciplinary action for
conduct or behavior that was a “flagrant
disrespect” towards the administration or faculty.
The College also has a policy prohibiting
profanity, cursing, and vulgarity. An instructor
overheard a student saying to another student
after class that the grade he received was going
to “fuck up” his GPA.
The student was
disciplined, barred from class and denied
financial aid for violating the college’s policy on
“flagrant disrespect” and profanity. The student
retained an attorney who threatened litigation if
College did not reverse its decision. It did.
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“Harassment” – student on student harassment is
defined as conduct that is “so severe, pervasive,
and objectively offensive that it effectively bars the
victim’s access to an educational opportunity or
benefit.”
Davis v. Monroe County Board of
Education, 526 U.S. 629 (1999). (Supreme Court
has not ruled on what constitutes harassment
among college students).
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Anti-bullying legislation – Tyler Clementi
Higher Education Anti-Harassment Act,
introduced in Congress in 2010, may lead to
First Amendment challenges.
The mere utterance of racial or sexually
derisive, demeaning epithets does not
necessarily rise to the level or racial or sexual
harassment.
Only very extreme forms of speech will rise to
the level of harassment.
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Example one: Latina student receives
repeated phone calls at 3 am, saying
“Undocumented bitch, go home!” versus the
same comment by several students in a
sociology class while discussing the Dream
Act.
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Student slams paperwork on the counter at the
registration office and snaps at a staff member.
“You all need to do something about these
long fucking lines!” Staff member responds,
“I’m not helping you until you can address me
properly!” Student responds, “I’m paying your
fucking salary. You have no choice but to help
me.”
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Would these facts change your response?
When you started working here 30 years ago,
the student population was predominately
white and respected authority. After working
for the college 30 plus years, your last day of
work is tomorrow.
The student is always obnoxious and skips
the line when he comes to register.
There are young children in the lobby and
they should not hear profanity.
Student arrives to class wearing baggy pants that clearly
expose his underwear. Every time the student comes to the
front of the class to present work on the board, he has to
pull up and hold his pants.
The instructor makes a
disparaging remark about the student’s pants hanging
down.
Student responds to instructor, “You don’t say
anything about these ho-ass bitches coming in here halfnaked.” The student continues and describes the female
students’ attire and body parts in graphic detail.
A female student replies, “Who you talking ‘bout? I ain’t no
ho! Just because I strip on the side to make some money.
Least I ain’t slangin’ crack rocks like you an’ your boys.” She
calls out the names of several male students in the
classroom.
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Would these facts change your response?
You know for a fact that the female student was
arrested for prostitution several years ago.
The male student has been accused of making
sexually explicit comments to female students.
The class is titled “Feminism: What Happened to
the ERA Movement?”
It is an interdisciplinary
class that explores how women have been
portrayed in the media and literature.
A group of students is hanging out in front of
the library talking loud and making racially
disparaging jokes.
The students also talk
about a keg party that happened off campus
and laugh about how one of the strippers was
drunk and had oral sex with several students.
One student, whose voice you recognize is
overheard saying, “That’s what he was paid to
do.” The students don’t recognize you as you
stand at the vending machine to buy a soda.
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Would these facts change your response?
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One of the students is the star athlete on the
women’s basketball team.
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One of the students is the SGA President.
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You never liked any of the students.
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You just got hired as the new Associate Dean and
several internal candidates are pissed that you
were selected.
A group of freshmen, former high school
classmates, enroll in the same college class
and play “follow-the-leader”.
Whenever
Anderson says something outrageous, his
friends clap loudly and laugh, encouraging his
antics.
Another student, White Chocolate,
mimics a hip-hop rapper’s slang dialect, which
annoys some of the other students in the
classroom and an argument erupts about
whether the white student is being racist.
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Would these facts change your response?
White Chocolate self-identifies as being
African-American and grew up in an all black
foster home.
The students who are complaining about the
racists comments are Hispanic.
None of the students are visibly African
American.
This is a music appreciation class.
Student closes her notebook and packs up her
backpack every day at exactly five minutes
before the class is scheduled to end, regardless
of whether the instructor has finished the
lecture. The student then starts sending text
messages on her cell phone.
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Would these facts change your response?
The class ends at 5:00 pm. Student lets you know
that she is a single mother with three children,
the oldest one is 16 years old and has run away
from home several times.
The class starts at 8:00 am. Student comes late
to class and always falls asleep.
Student has the highest grade point average in
class, but seldom participates in classroom
discussions.
Student is a 16 year old dual enrolled high school
student. You have heard rumors that she is
dating the department chairperson.
Joaquin, a nursing student, has fuchsia colored hair black, fifty
visible tattoos of naked women in various sexual positions and
multiple body piercings.
The instructor brings in a guest
speaker to discuss opportunities in the nursing field. The
speaker looks at the student and tells him that he will need to
dye his hair black, keep most of his tattoos covered and remove
his body piercings if he wants to be seriously considered for
employment.
The instructor makes the following comment. “I wouldn’t want
to be near this guy in a lightning storm.” Some students in the
class begin to laugh. The guest speaker replies, “Can you
imagine this guy working in radiography? I wouldn’t let him
empty my bed pan.” The student is an Iraq war veteran and has
4.0 GPA.
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Would these facts change your response?
The student has the lowest average in the class.
The instructor has been disciplined for allegedly
discriminating against Hispanic students because
of their accents and questioning whether they are
legal immigrants.
The guest instructor is the Director of Human
Resources at the one of the hospitals where the
college places only 1 percent of its graduates.
What if the college placed more than 60 percent
of its graduates at the hospital?
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Civility workshops for first-year students,
athletes, student leaders
Establish expectations and standards for
appropriate classroom/program/club
conduct, reinforce throughout semester.
Administrators, faculty and staff to model
civility on campus
Do zero tolerance policies really work?
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Q&A
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Student Civility, Lex Collegii, vol.29, no.4, Spring
2006.
Richard Anthony Baker, Sticks and Stones and
What You Really Think of Me: Perceptions of
Campus. Civility, Citizenship and Ghetto
Fabulous Parties from Two Generation of
African-American Students, Dissertation 2010.
L.R. Marcus (1996), Fighting words: The Politics
of Hateful Speech. Westport, CN: Praeger.
Susan Herbst, Rude Democracy, Inside Higher
Education, August 5, 2010.
<http://www.insidehighereducation.com/layout
/set/print/views/2010/08/05/herbst
Lazarus, Emma, New Colossus, N.p. 1883
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