Editor's Note: The original version of this story stated that UNM professor Geoffrey Miller presented at a Faculty Senate meeting his notes on UNM policies that subvert free speech last month. That is incorrect; he made this presentation in the fall of 2015. The story has since been changed to reflect that error. The Daily Lobo regrets the inaccuracy, and will continue to work diligently to prevent future errors.
The Foundation for Individual Rights in Education has called out UNM, along with 110 other public colleges and universities, for “highly restrictive speech codes” that the organization claims violate First Amendment rights.
The letter urges UNM faculty and administration to reassess and alter the policies, or else face a First Amendment lawsuit. FIRE gave UNM’s free speech codes a red light rating for portions of the University’s sexual harassment policy and the Respectful Campus Policy.
The specific rights of students that FIRE claims are being restricted include freedom of speech, legal equality, due process, religious liberty and sanctity of conscience.
The organization’s criticisms are not something new for the University.
At a Faculty Senate meeting in the fall of 2015, psychology associate professor Geoffrey Miller presented his assembled notes on many UNM policies that subvert free speech and breach the constitutional rights of faculty, staff and students.
“These policies were often well-intentioned, and accrued gradually over the years,” Miller said. “But they appear to have been written and adopted without anyone seriously checking whether they were compliant.”
Miller said in order to fix these issues, some policies are in need of revision, while others need to be repealed completely.
At the same meeting, a letter of response was presented by University Counselor Elsa Cole.
Cole started the letter by declaring, in her own opinion, that UNM’s policies are constitutional and abide by the First Amendment, thanks to what she said were consistent revisions that are needed due to evolving interpretations of First Amendment law.
“An example of this is the current policy prohibiting sexual harassment which went through such a process over the last two years,” she said.
A draft of revisions to the faculty version of the Respectful Campus Policy was released just last week.
Pamina Deutsch, head of the UNM Policy Office, said although she was uninvolved in the process, she likes the proposed corrections and understands the intentions behind the original words.
“I don’t believe their intent was to curtail free speech by promoting respect and civility,” Deutsch said. “Rather, it appears they thought that maintaining a respectful and civil tone would promote a ‘continued dialogue’ as called for in Policy 2220,” referring to UNM’s policy on freedom of expression.
Deutsch is making arrangements to work on revisions to the staff version of the Respectful Campus Policy in collaboration with members of the Staff Council and other constituents.
“Personally, I would like to narrow the focus of the policy to anti-bullying,” she said. “Staff Council has spoken to me about concerns with bullying.”
FIRE uses a grading system based on stoplight colors to indicate which schools’ speech-related policies are up to code in the organization’s eyes, with “red” marking speech-related policies that need work.
“UNM’s Respectful Campus Policy may have used such terms as ‘respectful’ and ‘civil’ more than other institutions’ similar policies,” Deutsch said. “For that reason, UNM’s policy was given a red rating while other institutions’ similar policies were given yellow ratings.”
While the original letter addressed UNM’s yellow score pertaining to the Respectful Campus Policy, the University has consistently had a red score pertaining to free speech for over two years.
As a whole, UNM received a red light grade for having at least one policy that both clearly and considerably limits freedom of speech.
Because of FIRE’s grading, when one policy is deemed as a red light, the entire institution is marked that way.
A “clear” restriction is defined as one that distinctly breaches on what is or should be guarded expression. According to FIRE, this pertains to the definition of sexual harassment in many UNM policies.
In October of 2014, FIRE named UNM’s Sexual Harassment Policy as the Speech Code of the Month, claiming that the annual event SexUality Week violated UNM’s own speech codes through suggestive workshop titles such as “Negotiating Successful Threesomes,” “O-Face Oral” and “BJs and Beyond.”
FIRE outlined that the Sexual Harassment Policy states what will not be tolerated; instances of sexual harassment including indecent letters, notes or invitations, and also prohibiting the demonstration of sexually suggestive or pejorative objects, pictures, cartoons or posters.
Last April, the Department of Justice concluded their investigation into UNM’s policies and operations pertaining to sex discrimination, declaring that the University incorrectly defined sexual harassment in several policies.
According to FIRE, under the authority of Title IX, the DOJ specified that a university “carries the responsibility to investigate” all talk of a sexual nature that an individual subjectively finds unacceptable, even if that kind of talk is guarded by the First Amendment or an institution’s guarantee of free speech.
30 people have been invited to team up with the committee tasked to revise the sexual harassment policies, Deutsch said. The task force is comprised of students, staff, faculty representatives, the Chief Compliance Officer and representatives from the Office of Equal Opportunity, Women’s Center and the Dean of Students Office.
“The committee will be focusing on concerns raised by the Department of Justice, as well as separate concerns raised by FIRE and certain faculty that relate to issues of free speech,” she said.
FIRE did impart the highest possible rating — a green light — to UNM for its administrative policy that emphasizes free speech, Policy 2220, which is a rewording of words from former Supreme Court Justice Brandeis:
“The exchange of diverse viewpoints may expose people to ideas some find offensive, even abhorrent. The way that ideas are expressed may cause discomfort to those who disagree with them. The appropriate response to such speech is speech expressing opposing ideas and continued dialogue, not curtailment of speech.”
Sarah Trujillo is a news reporter for the Daily Lobo. She can be reached at firstname.lastname@example.org or on Twitter @sarahtweets_abq.