University of Wisconsin Faculty Document 1402c

Madison 1 March 1999

[Note: This document is written as an amendment to the new speech code proposal backed by the majority of the ad hoc committee. Material that is crossed out is deleted, and material that is underlined is added to the proposed speech code. - LHH]

AD HOC COMMITTEE

ON PROHIBITED HARASSMENT LEGISLATION

University of Wisconsin-Madison

A BILL TO REVISE FACULTY LEGISLATION II-303-305 (Faculty Document 786):

"PROHIBITED HARASSMENT: DEFINITIONS AND RULES GOVERNING THE CONDUCT OF UW-MADISON FACULTY AND ACADEMIC STAFF"

PARTS I and II:

SEXUAL FAVORS; FLAGRANT OR REPEATED SEXUAL ADVANCES

Part I: Sexual Favors as a Basis for Actions Affecting an Individual's Welfare as a Student or Employee

[no change]

Part II: Flagrant or Repeated Sexual Advances, Requests for Sexual Favors, and Physical Contacts Harmful to Another's Work or Study Performance or to the Work, Study, or Service Environment

[no change]

~~PARTS III, IV and V:~~

~~EXPRESSION IN INSTRUCTIONAL AND NON-INSTRUCTIONAL SETTINGS~~

~~Preamble~~

Part III. Expression in Instructional Settings

The University of Wisconsin-Madison endeavors to maintain an environment that challenges students, faculty, and staff to develop their critical thinking capacities to their fullest potential--an environment in which controversial, provocative, and unpopular ideas can safely be introduced and discussed. The University is, therefore, unswervingly committed to freedom of speech as guaranteed under the First Amendment to the Constitution of the United States and to the principle of academic freedom adopted by the Board of Regents in 1894, which states in part: "whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone truth can be found."

(continued)

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Beneficial to students and professors alike, academic freedom has special application to the classroom and has been described by U.S. Supreme Court Justice William Brennan as "...of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom....The classroom is peculiarly the marketplace of ideas."

Adherence to the right of freedom of speech and to the principle of academic freedom requires that all thoughts presented as ideas or the advocacy of ideas in instructional settings, if they are germane to the subject matter of the course being taught, must be protected. This applies to the ideas of faculty and students alike. The maintenance of intellectual freedom through the open expression of ideas will sometimes be unavoidably hurtful. Some hurtful expressions, however, play no meaningful role in the free exchange of ideas; they may, indeed, inhibit that exchange, thereby denying some individuals full participation in the learning experience~~, and thus ought not to be tolerated~~. These expressions are those that clearly derogate and debase a student or students in the class on the basis of gender, race, religion, ethnicity, sexual orientation, or disability.

Within the framework of academic freedom, the faculty and academic staff have a responsibility to foster an environment of tolerance, civility, awareness, and respect. The University community can thrive and serve its members equally only when the community recognizes the inherent worth and dignity of every human being and affirms the principle of mutual respect as an integral aspect of the pursuit of knowledge. The integrity of the University of Wisconsin-Madison rests upon its ability to guarantee freedom from intimidation or injury generated by intolerance or harassment. ~~while maintaining t~~The freedom of all members of the university to express openly their ideas and opinions, however, must be maintained. ~~The rules that follow seek to fully protect intellectual freedom and to identify the limited class of expression that is not entitled to such protection.~~

Accordingly, all expression germane to the instructional setting--including but not limited to information, the presentation or advocacy of ideas, assignment of course materials, and teaching techniques--is protected from disciplinary action.

A student who finds that an instructor uses expressions that are hurtful to him or her is strongly urged to discuss these concerns with the instructor. If for some reason this is not possible, or does not produce results the student finds satisfactory, he or she is urged to contact his or her advisor, the instructor's department chair, or the Dean of Students, for mediation between the student and the faculty member. If the student still believes the expressions were not germane to the instructional setting, he or she is referred to Faculty Policies and Procedures Chapter 9 or Academic Staff Policies and Procedures Chapter 6.

~~Part III. Protected and Unprotected Expression in Instructional Settings~~

~~University instructors ("instructional personnel") are subject to discipline for using derogating and debasing expression in an instructional setting according to the following definitions and rules.~~

~~A. Definitions~~

~~1. An "instructor" is any member of the faculty or academic staff employed by the UW-Madison who has sole or shared responsibility to teach a course for degree credit.~~

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2. "Expression" is communication in any format--including but not limited to oral, visual, literary, recorded, or symbolic. Expression includes the presentation of factual information and opinion, and the advocacy of ideas.

3. An "instructional setting" is any situation in which the instructor of a course communicates about course content with one or more students enrolled in the course, or in which an instructor who has partial responsibility for communicating course content but is not the individual delegated with particular authority to record student grades communicates with the student(s) about the course content (e.g., as a member of a thesis committee; as a lecturer in a team-taught course), or in which an instructor, acting as an advisor, discusses courses taught by other instructors. Instructional settings include, but are not limited to, lecture halls, seminar rooms, laboratories, field trips, and instructors' offices. Instructional settings do not include public lectures where attendance by students is not required, published scholarship, commentary advanced in or reported via any public medium, and the like.

In instructional settings, intellectual discourse requires and deserves the broadest possible degree of academic freedom because such settings are the locus in which all members of a course are exposed to and communicate about course content together, the collective pedagogical pursuit of truth occurs most intensively, and the ideas of every individual are most prominently and personally on display. Although this article does not define protected student expression, the definition of protected expression of instructors given below implies and depends upon students being accorded the same degree of academic freedom.

~~B. Protected and Unprotected Expression~~

1. All expression germane to the subject matter of a course, including the presentation or advocacy of ideas and the assignment of course materials, is protected and not subject to discipline, however controversial or repugnant such expression may be. The use, in addressing a specific student, of an epithet or a comment concerning a specific student that clearly derogates and debases the student on the basis of the student's gender, race, religion, ethnicity, sexual orientation, or disability, thereby impugning the student's status as an equal participant in the class, shall not be considered "germane." Therefore, such expression is not protected unless the instructor has a reasonable pedagogical justification for the use. Information, opinions and ideas germane to the course are not in themselves a "comment" concerning specific students and are protected (even though they reflect adversely on a student's gender, race, religion, ethnicity, sexual orientation, or disability).

2. The use of an epithet not directed to a specific student or of a teaching technique that clearly derogates and debases a student or students in the class on the basis of gender, race, religion, ethnicity, sexual orientation, or disability is not protected, unless the instructor has a reasonable pedagogical justification for using the teaching technique in question rather than an efficacious technique that would not be derogating and debasing. Information and ideas germane to a course are not in themselves a "teaching technique" and are protected (even though they reflect adversely on a gender, race, religion, ethnicity, sexual orientation, or disability and could be considered to derogate and debase).

~~Examples~~

The following examples are intended to distinguish between protected and unprotected expression. Since no finite set can cover the variety of cases that may emerge under this legislation, the examples are illustrative rather than definitive.

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(1) In a course that deals with race, gender and intelligence, the instructor includes The Bell Curve in the list of assigned readings. In a lecture, the instructor expresses the opinion that the book's conclusions, including those that reflect adversely on the intellectual capacity of African Americans, are essentially correct. In addition, the instructor asserts that the intellectual capacity of men for scientific analysis is superior to that of women. All of this expression is protected and not subject to discipline. It is not a derogating and debasing epithet or comment addressed to a specific student and concerning that particular student. The ideas expressed, although controversial and repugnant to many, are clearly germane to the course.

The instructor makes the same statements in a classroom dialogue with a specific student or in his/her office when a student comes to discuss the instructor's lecture. While these comments are directed to a specific student, they, like the statements during the lecture, express opinions about a class of persons and are not comments "concerning" the "specific student[s]" being addressed even though they reflect adversely on their race and gender. Therefore, they, too, are protected.

A woman in this class objects to what the instructor has said about the scientific intelligence of women and offers a rebuttal. The instructor responds, "See! Your stupid female comments just prove my point." This is a comment addressed to a specific student that clearly derogates and debases that student on the basis of her gender. There appears to be no reasonable pedagogical justification for thus attacking this student, in which case the comment would be the basis for discipline if all of the conditions specified in subsection III.B.3.a-d below are satisfied.

(2) In a course on U.S. history, in a discussion of the slave trade, the instructor refers to the Africans who were transported to the United States as "niggers." This expression is not protected. Although not an epithet addressed to a specific student, its use by the instructor clearly derogates and debases African-American students on the basis of race. It is difficult to imagine any reasonable pedagogical justification for the instructor's repeated use of this epithet during class discussion under these circumstances, in which case the use of the epithet would be the basis for discipline if all of the conditions specified in III.B.3.a-d below are satisfied.

(3) In a literature course, the instructor assigns a pertinent novel that expresses racist ideas or contains a racial epithet such as "nigger," "kike," "spic," and the instructor, in referring to or discussing the novel's language, uses the epithets used by the author. Similarly, in a class that deals in part with limitations on speech and whether it is legally or morally permissible to use epithets expressing hatred toward a particular group, the instructor, to dramatize the impact of such language or illustrate some other pertinent point, shouts out a series of racial, ethnic and religious epithets. It is clear from the context, however, that the epithets are not meant as an insult to any person or group. Neither of these situations involves epithets or comments addressed to a specific student. The former involves the assignment of course materials not only germane to but actually the subject of the course. The instructor also can be seen to have a reasonable pedagogical justification for using the epithets in discussing the novel's language because meaningful discussion would be difficult without doing so. The latter involves the use of epithets as a teaching technique. The purpose is to focus students' attention on the intellectual issue at the heart of the course, and to drive home a fact about the impact of such epithets. The instructor can be seen to have a reasonable pedagogical justification for using this approach. Therefore the expression is not subject to discipline.(continued)

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(4) In an anatomy course, an instructor uses a Playboy centerfold or similar material to illustrate anatomical information germane to the course. The only apparent value of this technique is to grab a student's attention. It does nothing, however, to focus attention on the subject matter of the course or otherwise advance comprehension of anatomy. At the same time it clearly derogates and debases the women in the class, is likely to create an atmosphere that detracts from their efforts to learn, and thus has a negative impact on pedagogical objectives. Other effective techniques for communicating the information that would not derogate or debase class members, and would facilitate rather than impair learning by women in the class, are available. Consequently there appears to be no reasonable pedagogical justification for using the centerfold rather than one of the available alternative means, in which case the use of this technique would not be protected.

In a course which deals with the legality or morality of the distribution of sexually explicit materials, a Playboy centerfold or other similar material is used to illustrate items that are considered by some to be pornographic. This technique is protected. There is no alternative technique for adequately presenting to the class full and accurate information concerning the subject of the class discussion.

~~3. An instructor's expression can be the basis for discipline only if all of the following conditions apply:~~

~~a. The expression is clearly and patently not protected under III.B.1-2 above; and~~

~~b. one or more students in the class on one or more previous occasions have asked that the instructor stop using such expression; and~~

~~c. the expression is, and is commonly considered by the University community--including individuals who belong to a group targeted by the expression--to be, seriously derogating and debasing; and~~

~~d. the expression is likely seriously to detract from a student's capacity to act as an equal participant in the class.~~

Part IV. Protected and Unprotected Expression in Non-Instructional but Work-Related Settings

Faculty and academic staff are subject to discipline for using derogating and debasing expression in a non-instructional but work-related setting according to the following definitions and rules.

A. Definitions

1. "Expression" is communication in any format--including but not limited to oral, visual, literary, recorded, or symbolic. Expression includes the presentation of factual information and opinion, and the advocacy of ideas.

2. A "non-instructional but work-related setting" is any situation except those ~~covered in Part III~~ described in Definition 3 below in which a member of the faculty or academic staff, while engaged in a University-related task, communicates with students, University employees or recipients of University services. Non-instructional but work-related settings include, but are not limited to, such situations as discussion about what graduate school a student might attend or what career options a student might pursue, or comments to a staff member in the Department office.(continued)

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B. Protected and Unprotected Expression

1. Expression is protected if it involves the presentation or discussion of any material that is appropriate to non-instructional but work-related activities.

The use, in addressing a specific student, University employee, or recipient of University services, of an epithet or a comment concerning that student, employee or recipient of services that clearly derogates and debases ~~the individual's~~ him or her on the basis of his or her gender, race, religion, ethnicity, sexual orientation, or disability is not appropriate and therefore is not protected.

2. Expression can be the basis for discipline only if all of the following conditions apply:

a. The expression is clearly and patently not protected under IV.B.1; and

b. one or more student(s), University employee(s), or recipient(s) of University services have asked on one or more previous occasions that the faculty or academic staff member stop using such expression; and

c. the expression is, and is commonly considered by the University community--including individuals who belong to a group targeted by the faculty or academic staff member--to be, seriously derogating and debasing; and

d. the expression is likely seriously to interfere with an individual's academic or professional performance, or receipt of University services.

Part V. Procedures for the Implementation of Part~~s III and~~ IV

The procedures below distinguish between (a) situations in which someone believes that a member of the faculty or academic staff has engaged in prohibited expression, but there could be no violation of Part~~s III or~~ IV, because there had been no prior request not to engage in that expression, and (b) situations in which the claim is that Part ~~III or~~ IV has been violated, because such a request had been made and the expression was subsequently repeated.

In the first situation, the procedures deal with communication between the person who engaged in the expression and the person who objects to it. This may lead to agreement on whether the expression is or is not protected. If no such agreement emerges, the procedures provide mechanisms for obtaining clarification on whether the expression is protected.

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The second situation is one in which it is claimed that unprotected expression has been repeated and constitutes a violation of these rules. Experience demonstrates that most such claims can and should be dealt with through informal processes whose goal is to enhance the understanding of those concerned and to fashion a resolution that each of them will perceive as fair and reasonable. The procedures for seeking such a resolution are set forth below. In addition, the University's formal disciplinary processes are explained, as is the grievance process available to a faculty member who believes that his or her rights have been violated by proceedings under these rules. Whether a matter is being pursued informally or through formal disciplinary proceedings, expression cannot be deemed a violation of these rules unless all of the requirements of ~~either Part III.B.3 or~~ Part IV.B.2 are satisfied.

A. Procedure prior to a repetition of expression believed to be unprotected

1. A person who objects to expression and believes that, if repeated, it could be the basis for disciplinary action, should, either directly or through an intermediary of his/her choice, explain to the faculty or staff member in question why the expression is considered objectionable and request that the expression not be repeated. If the faculty or staff member considers the expression to be protected, he/she is encouraged to discuss the matter with the person who has complained. If such a discussion fails to produce agreement on whether the expression is protected, the faculty or staff member whose expression is in question, if he or she wishes, may ask, as appropriate, the secretary of the faculty to convene a panel of at least three former chairs of the Committee on Faculty Rights and Responsibilities and/or the University Committee, or the secretary of the academic staff to convene a panel of at least three former chairs of the Academic Staff Appeals Committee and/or the Academic Staff Executive Committee to provide ~~as appropriate, for~~ advice on this question, or may ask his/her department to ask for such advice. Alternatively, if the complainant and the faculty or staff member agree to do so, they may jointly ask the Committee on Faculty Rights and Responsibilities or the Academic Staff Appeals Committee, as appropriate, for an opinion on whether the expression is protected. Such an opinion, if supported by the vote required in disciplinary cases, shall be conclusive in any subsequent university disciplinary proceedings that may occur.

a. If requested by a student, the Dean of Students office shall facilitate communication between the student and the ~~instructor~~ faculty or staff member, either by helping and advising a student who wishes to speak directly with the ~~instructor~~ faculty or staff member or by acting as an intermediary between them.

b. Oral and written communications occurring during this process between or among the person objecting to the expression of the faculty or staff member, that faculty or staff member, and an intermediary may not be used as evidence in any university disciplinary proceeding. This provision does not apply to a request that expression not be repeated.

B. Procedure following repetition of expression believed to be a violation of these rules

1. The Informal, Non-Disciplinary Process. A person who believes that these rules have been violated is encouraged, though not obliged, to discuss the matter with the ~~instructor~~ faculty or staff member involved, either directly or through the intervention of an appropriate intermediary at the departmental, school/college, or campus level. Similarly, ~~instructors~~ faculty or staff members are encouraged, though not obliged, to participate in efforts to resolve complaints in this informal manner.

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Oral and written communications occurring during the informal process may not be used as evidence in any university disciplinary proceeding.

a. When an individual believes that these rules have been violated and seeks to deal with the problem informally, he/she should be prepared to identify precisely the conduct believed to constitute the violation. Precision is often aided by expressing the complaint in writing. If the matter is not promptly resolved, and if the person complained against so requests, the complainant shall provide such a written statement.

b. A complainant who believes that informal approaches are inappropriate, or that an informal process that has been invoked is not functioning satisfactorily, is entitled to invoke the formal disciplinary process.

c. A~~n instructor~~ faculty or staff member is entitled to refuse to participate, or cease participating, in informal processes and insist that the matter be dropped or handled through the disciplinary process.

d. If a complaint about harassment is being handled informally, and there is a dispute about whether the alleged conduct constitutes a violation of these rules, the person or body handling the matter shall seek advice on this question from the Administrative Legal Services Office and inform those concerned of the advice received.

2. The Disciplinary Process. Discipline can be imposed on faculty members for violation of these rules only in compliance with the requirements of the formal processes delineated in Chapter 9 of FPP (Faculty Policies and Procedures). This process is instituted by the filing of a written complaint with the Provost. If the faculty conduct in question does not constitute a violation of these rules, the complaint is dismissed. If the conduct would be a violation, an investigation is conducted, including a discussion with the faculty member, if he/she wishes. Depending on the outcome of the investigation, the Provost will either dismiss the case, refer it to the faculty member's department, or proceed with disciplinary action. If discipline is proposed, the faculty member is entitled to have the matter fully heard and considered by CFRR (Committee on Faculty Rights and Responsibilities), a committee of nine faculty members elected by the faculty at large. CFRR makes specific findings of fact and forwards them to the Chancellor together with its recommendation as to the disciplinary action it considers appropriate. A determination by CFRR that there is adequate cause for discipline requires a majority vote with no more than two dissenting votes. FPP Chapter 9 should be consulted for further information concerning the details of the formal disciplinary process.

C. Grievances by Faculty Members. A faculty member who believes that he/she has been treated unfairly or that his/her rights have been violated by efforts to deal with a complaint of harassment is entitled to pursue a grievance under FPP 8.15. Such a grievance, if not otherwise resolved to the faculty member's satisfaction, can be brought to the University Committee, which has full power to consider it and take whatever actions it deems appropriate.

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