University of Montana President George Dennison says his draft “Code of Ethics for The University of Montana” is simply a set of ethical guidelines the university community should subscribe to in light of a contemporary culture awash in ethical quandaries. Though he insists the code isn’t intended as an official policy document, Dennison says he’s currently seeking its endorsement by “various areas of university and faculty governance.”
“It’s a position statement of what we all agree to,” Dennison says of the draft. “It’s not intended to be an addition to university policy; it’s a code of ethics to which we all subscribe.”
That’s cold comfort for Hayden Ausland, a UM professor of classics who says Dennison’s “code of ethics” is a veiled attempt to control speech and the open expression of ideas on the UM campus.
“You’ve got speech and thought controls mixed in with legitimate university policy,” says Ausland. “I think the administration needs to make it quite clear what they think [the code] means and what its purpose is and how it is intended to be used. That is critical.”
Dennison insists the code isn’t intended to impose any restrictions on speech.
“Basically what it says is that you treat everyone with respect and dignity even if you don’t agree with their beliefs and background,” he says.
Samantha Harris, a program officer with the Philadelphia, Pa.-based Foundation for Individual Rights in Education (FIRE), which watchdogs university speech codes, familiarized herself with UM’s draft at the Independent’s request; she says Ausland has good reason to be concerned. She says the draft code, even if it’s not intended as official University policy, could have a chilling effect on free speech among students and faculty at UM.
“It’s fine, theoretically, to make a statement aspiring to certain human rights and values, but [by] the fact that this code starts out by stating ‘Ethical behavior requires,’ a reasonable student or faculty member could believe that it is a policy that they must abide by,” Harris says.
Sandwiched between the draft’s language about identifying conflicts of interest and not misappropriating university resources are the following guidelines:
— “We treat everyone with respect and dignity, even when the values, beliefs, behavior, or background of a person or group offends us.”
— “We have responsibility to speak out against hatred and bigotry whenever we observe their occurrence.”
— “We do not harass, mistreat, belittle, harm or take unfair advantage of anyone.”
— “We do not tolerate plagiarism, lying, deliberate misrepresentation, theft, scientific fraud, cheating, invidious discrimination, or abuse of others.”
Dennison forwarded the proposed draft to the executive committee of the UM Faculty Senate in December. The executive committee declined to take any action on the draft, and instead forwarded it to the University Faculty Association.
“We weren’t comfortable dealing with it,” says Linda Frey, a UM history professor and member of the executive committee. “The language in the code looks innocuous, but it’s not innocuous. It does proscribe speech and its intent is to do that.”
Since the 1980s, universities and colleges across the nation have attempted to implement hate-speech codes to curb harassment and intimidation on campuses. Despite the good intentions behind such speech codes, state and federal courts have consistently struck them down as unconstitutional restrictions of free speech. According to Ausland, UM officials attempted to adopt their own hate-speech code in 1992 but backed away from it after the U.S. Supreme Court struck down a St. Paul, Minn., hate-crime ordinance.
More recently, as a result, speech codes have often been included within university anti-harassment or code-of-conduct policies rather than presented as stand-alone policies.
Harris says language in UM’s draft ethics code is not unlike language in Shippensburg [Pennsylvania’s] University’s Code of Conduct and Racism and Cultural Diversity Policy Statement, which was deemed unconstitutional by a Pennsylvania court in 2004. Shippensburg defined harassment as any “unwanted conduct which annoys, threatens, or alarms a person or group.” The code went even further, requiring “every member of the community to ensure that the principles of these ideals be mirrored in their attitudes and behaviors.” Harris says language in UM’s draft ethics code, which asserts that members of the campus community “have responsibility to speak out against hatred and bigotry,” unconstitutionally compels speech.
“Unfortunately, we see these kinds of codes at universities across the country,” she says. “These days, policies restricting free speech aren’t found under the heading ‘speech code’ or ‘speech policy.’ They’re found in the same policy that bans harassment.” In UM’s case, the speech provisions are subsumed within the proposed ethics code.
Dennison says much of what’s contained within the proposed ethics code is already part of university policy, leaving Frey and Ausland to question the need for such a code in the first place.
“If this is meaningless, why have it?” Frey wonders.
Harris says there’s nothing wrong with the UM administration aspiring to the principles laid out in the ethics code, but to Harris, its codification would cross the line from simple aspirational statement to interference with freedom of speech. She cites the landmark case of West Virginia State Board of Education v. Barnette, in which the U.S. Supreme court ruled: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”
Ausland says it’s imperative that the university community conduct an open discussion about the ethics code before any action is taken.
“I think up ’til now [the code] has occupied the drawers of various individuals and has been kicking back and forth in various committees,” says Ausland. “The key thing is to get it out in the open. If we do that, the outcome will be a good one for everyone.”