Faculty Rights and Responsibilities of Expression

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On December 18, 1996, after discussion at several faculty meetings, the faculty passed (as emended) the report by the Task Force on Speech and Community, entitled, "Rights and Responsibilities of Expression at Swarthmore," and indicated that relevant portions of the report be entered into the Faculty Handbook. The relevant sections below were chosen by the Provost and Chair of the Task Force and modified slightly to fit the handbook format.

1. Introduction

Swarthmore College is deeply committed to creating an environment that fosters diversity without in any way sacrificing its unwavering commitment to free inquiry, speech, expression, and exchange of ideas

Without the commitment to free inquiry, the pursuit of truth, exploration of alternate approaches to knowledge and art, and broader concerns to educate ourselves about different ways of life would be doomed. Free inquiry, speech, expression, and exchange of ideas often lead to controversy. Such controversies can be fierce and often painful for those who believe - sometimes rightly - that their views or ways of expressing themselves are not given their due or that cherished convictions are under siege. But no academic institution can avoid these dangers. We can hope and urge, however, that students, staff, and faculty will be civil and treat one another with respect. For speech is also conduct: we do things with words. Speech and other forms of expression have effects, intended or otherwise. Just as we demand that people take responsibility for their conduct, so we can demand that people take responsibility for their speech: freedom is not license.

The College finds it unconscionable that its members should be subjected to hateful expression or to the attitudes that underlie such expression. We seek to maintain the civility of college life, recognizing that failure to do so is a very real failure of our academic and ethical mission. As part of our ongoing efforts to educate our community and to protect victims of hateful expression, we affirm the policy described below. We acknowledge that there are powerful forms of expression that this code cannot prohibit, but that nevertheless do genuine harm, and we encourage all members of the campus community to help make this code only one in a range of responses that work to end verbal abuse. We believe that active attention to the power of the expression we use will increase the educational opportunities of our entire community, and that our shared commitment to respectful coexistence will benefit us all. Yet because of its commitment to free expression, the College will regulate speech or expression [hereafter, expression ] only if fraudulent, threatening, or harassing. But nothing in this document is meant to discourage those who think they have been wounded by expression from seeking assistance. This document is, in fact, a tangible sign that the College is strongly committed to providing that assistance.

Below we affirm a policy that we hope will greatly help to combat expressive harassment on our campus. Although the report itself is adamant about protecting free expression, we ask those who read it not to infer lack of concern for the victims of expression that wounds. On the contrary, we hope that setting out a clear and defensible set of policies will facilitate a much broader engagement with the problems of expression in our community. To the extent that we can put regulations behind us, we can turn our energies toward the much larger task of creating an environment that fosters educational, social, and professional growth for all who live, study, and work here.

2. Fraudulent Expression

Fraudulent expression occurs where one lies about or seriously misrepresents authorship of one's expression. Plagiarism, of course, is one instance. But there are others. It is forbidden, for instance, for A to send an e-mail message to B purporting to be from C or for an individual or group to place a poster attributing it to another individual or group. Clearly, some instances are mere pranks, but many instances can cause serious harm, so even pranksters must realize that they run the risk of adjudication for reckless conduct that causes harm.

3. Threatening Expression

Expression that credibly threatens physical violence will not be tolerated any more than the College tolerates physical assault and battery: everyone has a right to participate in all aspects of College life without fear of physical attack. Threatening expression will be inferred from all the circumstances.

4. Harassing Expression

A. Preface

Harassment can take many forms. One can harass, for instance, by intentionally playing a radio so loudly that others cannot work. Here, however, we are concerned with harassment that has a semantic content: that is, where one harasses using words, gestures, pictures, and other forms of expression that substantially interfere with another's educational opportunities, peaceful enjoyment of residence and community, or terms of employment. The harm caused by harassment is no less real because it has a semantic content. It does, however, make it more difficult to regulate since it often involves issues of free expression.

Of the various Handbooks, only the Student Handbook currently mentions harassment. Unfortunately, it offers no set of definitions, principles, or criteria, to determine when harassment involving expression occurs. Instead, it relies on the good judgment of the Deans to make these difficult determinations. While we can neither hope nor desire to eliminate judgment from interpreting and applying norms of conduct, we believe that our policies set forth below significantly clarify matters relating to harassing expression. As a result, we believe that all will have a clearer understanding of where the College stands in determining when expression does or does not constitute harassment and, also, what methods of resolution are available when complaints are lodged.

Students, Staff, and Faculty have different procedures for addressing complaints. We believe, however, that the definitions, principles, and criteria relating to harassing expression should be the same. This is reflected in what follows.

B. Definitions, Principles, and Criteria

It needs to be emphasized that harassment can be and often is non-physical, including words, pictures, gestures, and other expression. To count as harassment, such expression must be reasonably regarded as (a) taunting, vilifying, or degrading whether (b) directed at individuals or groups [subject to the clarification and qualification below] and (c) where reasonable people may expect that such expression would harm its target(s) by substantially interfering with their educational opportunities, peaceful enjoyment of residence and community, or terms of employment. Further, to count as harassment subject to possible formal grievance procedures, such expression must (d) be made either with the intent to interfere with the protected interests mentioned in (c), above, or with reckless disregard to the nature of the conduct. Such intent or recklessness must be inferred from all the circumstances. Finally (e), such expression must be repeated and persistent. To be "repeated and persistent," the offending conduct must have been brought to the attention of the defendant (though not necessarily by the complainant), be of the same kind, and repeated. There are two reasons for adding (e): first, the College wishes to have the opportunity to educate those who may not realize that certain expression constitutes harassment; second, by requiring that the expression be repeated and persistent, the College helps establish intent or recklessness. However: (f) before any expression can be considered for possible formal grievance procedures, it must be clear that no substantial free expression interests are threatened by bringing a formal charge of harassing expression. This strict criterion for possible formal grievance procedures must be imposed to insure that the College does nothing that would diminish free expression or compromise principles of academic freedom in the vigorous and often contentious examination and criticism of ideas, works of art, and political activity that marks Swarthmore College.

Because groups have been included in (b), above, the following clarification and qualification is in order. If expression that would be regarded as harassing if directed at an individual is directed at a group - where no individuals are specifically named or referred to as targets - any member of that group will have a grievable complaint only if it can be established that a reasonable person would regard that offending expression as harassing each and every member of the group as individuals. Unlike sexual harassment, which is often though not exclusively directed at particular individuals, degrading expression is more often than not directed at individuals through their group identity. A loose analogy with threats may clarify what is intended: in cases where someone credibly threatens violence against group X, reasonable people would be right to conclude that each and every member of X has good reason to believe himself or herself threatened, and thus any member of X would have a complaint although unmentioned by name and perhaps unknown to the threatener.

C. Options for Resolution

Charges of harassment may be handled according to either informal or formal procedures. In general, opportunities for education and awareness are important elements in the resolution of harassment issues, sexual or otherwise. Individuals who wish to register concern about questionable behavior, but do not wish to claim intent or reckless disregard, are encouraged to speak to the person(s) involved and/or to any of the resource persons listed below. Whether or not options for resolution are pursued within the College system, complainants always have the option of seeking formal legal redress.

Assistance and information are available from the following:

  • Provost's Office: Connie Hungerford, Provost, Parrish 229, ext. 8319
  • Dean of the College's Office:
    • Dean's Main Office, Parrish 140, ext. 8365;
    • Karen Henry, Gender Education Advisor, Parrish 130, ext. 8169;or
    • SMART (Sexual Misconduct Advisors and Resource Team): see Student Handbook, pp. 54-
  • Human Resources Office: Lee Robinson, Employee Relations Manager, Pearson 10, ext. 8398
  • Equal Opportunity Office: Sharmaine LaMar, Equal Opportunity Officer, Parrish 373 North, ext. 5675

In cases in which grievants and alleged offenders are from different parts of the community (students, staff, or faculty), complaints should be directed to the responsible office according to the identity of the alleged offender: Dean's Office for students, Human Resources for staff, and Provost for faculty. The formal grievance procedures are specified in the relevant sections of the corresponding Handbooks. They should be adapted as specified below when applied to expressive harassment.

Before any formal grievance procedures can proceed, case materials must first be reviewed by faculty members of the College Judiciary Committee (CJC), who shall determine whether any substantial free expression issues are at stake. If the CJC faculty members find that formal grievance procedures would violate individual rights to free expression or the College's commitment to academic freedom, the case will not go forward. Instead, the case will be referred back to the appropriate College officer, who may discuss with the complainant(s) other options for resolution. If, on the other hand, it is determined by the faculty members of the CJC that the case represents no substantial infringement on the right to free expression, the grievance will be allowed to go forward.

It is important to note that discussing concerns with or seeking clarification or support from College officers does not obligate a person to initiate either formal legal procedures or grievance procedures at the College, nor do such discussions preclude a person from doing so. The College officer to whom a complaint is made will record each request for assistance in resolving a case involving charges of harassment, whether formal or informal; these records will be kept confidential to the extent permitted by law.

Often perceived harassment is subtle; it cannot be assumed that the perceived offenders are aware of the way in which their behavior has been interpreted and the responsibility for resolution is shared by both parties. Either directly or through a third party, grievants should make their discomfort known to perceived harassers. Perceived harassers have a responsibility to attempt to understand both the intentional and unintentional effects of their behavior and to respond in a thoughtful, sensitive manner to those perceived effects. The grievant can consider all the informal and formal means available for resolution and choose what seems most useful and workable in a particular case. The grievant must also weigh the fact that the perceived harasser may continue the offensive behavior until being made aware of his/her actions. In the most serious instances of harassment, it is unreasonable to expect grievants to confront their perceived harassers; in these cases the grievant should enlist the help of a trained third party.

5. Uncivil and Demeaning Non-Harassing Expression

As a member of Swarthmore College, one's moral responsibilities extend beyond formally sanctionable conduct. All of us, therefore, have a responsibility not to indulge in gratuitous offensive expression just because it may not be subject to official sanctions. Anonymous offensive expression is generally inexcusable, but the risk of harm in making adjudicable all forms of offensive expression would not only outweigh the benefits of official proscription, it would also seriously endanger academic freedom. Even when individuals (or groups) admit authorship, however, they act irresponsibly if they are unwilling to engage in a defense of their views, especially with those targeted.

Perpetrators of alleged non-adjudicable but uncivil expression should engage the objects of their attacks through discussion and, possibly, mediation. If they do not, however, no disciplinary action will be taken, though College officials or anyone else may publicly decry the content and manner of such expression or ask that it be referred to the Community Council (see below).

It needs stressing again that the College will in no way formally discourage any argument, provided it does not include threats of violence, though what is said may be deplorable and very possibly more diatribe than argument.

6. Faculty Handbook Revisions

The same definitions, principles, and criteria set out above regarding expressive harassment shall apply to the faculty and be incorporated into the Faculty Handbook. Further, complaints involving faculty will follow procedures set out above in 4.C.Options for Resolution, including - where required - review by faculty members of CJC.

7. Explanation

Without vigorous and controversial discussion and debate, the College cannot survive; without respect and civility, however, it cannot thrive. Swarthmore College therefore strives to create an environment of civility and respect where those of diverse backgrounds and convictions can explore questions and controversies that naturally arise in an academic setting. Successful creation of such an environment cannot, of course, be guaranteed. But however vehement controversy becomes, the College insists that its members take responsibility for their expression just as it insists that individuals take responsibility for their other actions.

To attack the bases of self-respect for others, especially while hiding behind a veil of anonymity, is inexcusable. First, it is cowardly, and abjectly so: license masquerading as freedom may not take refuge in cowardice. Second, because Swarthmore is committed to the free exchange of ideas, all must take responsibility for their expression: those subject to attack especially need to know who is mounting attacks against them so that they can better decide how to respond.

It should be noted that the criteria set out above regarding harassing expression are not limited to individuals or groups historically oppressed and/or as protected in the College's Equal Opportunity statement. It must be stressed that the regulations protect specified interests, not specified groups, and apply only to expression that harasses, not other expression that might reasonably be regarded as offensive or hurtful, whether intended, reckless, or negligent. To reiterate: the College's response and any punishments assessed by the College will address only the intentional or reckless infliction of harm caused by harassing expression, and not other possible harms or offensiveness caused by non-harassing expression.

In particular, these regulations do not apply to what are arguably far more destructive forms of offensive expression, whether or not anonymously expressed and whether or not they are harassing: e.g., racism or sexism thinly disguised as science or art. The College does not attempt to prohibit such expression, however irresponsible it may be. A sufficient reason not to do so is the virtual impossibility of framing regulations with requisite subtlety to capture just those cases we would wish to discourage without - at the same time - creating a chilling educational, scholarly, and artistic atmosphere. Further, experience elsewhere suggests that when complex and fine-grained regulations are drafted, attention tends to be diverted from the substance of irresponsible expression to the niceties of quasi-legal interpretation. Finally, fraudulent and harassing expression are the two most prevalent and serious forms of expressive misconduct that occur at Swarthmore and so they, along with threats of violence, are singled out for attention. In prohibiting only them the College hopes to foster maximum academic freedom. Only fraudulent expression, threats, and expressive harassment, therefore, run the risk of official sanction. Again, when offensive but non-harassing expression occurs, especially when repeated and persistent, then discussion and mediation may be suggested and even urged, but never adjudication.

These formal limits on harmful, licentious expression do not exhaust anyone's responsibilities to create and sustain a setting where students, staff, and faculty can pursue life at Swarthmore free from hatred, slurs, and vilification. The purpose of these regulations, however, is to put everyone on notice concerning what will and will not enjoy formal protection under the guise of "free expression."