Columbia University’s new Anti-Discrimination and Discriminatory Harassment Policy and Procedures for Students represents something of what historian of law Haym Soloveitchik calls an “angle of inflection.” The animus generated by pro-Palestine-anti-Israel demonstrations at Columbia University and their impact on campus reflect a hard case or moment around which old governing norms or rules, in this case norms regarding free speech, are pressed into new shape by the power of forces that press upon the system from outside the system (student actors, donors, U.S. federal law). As reflected in the policy, the principle and rules relating to free speech are recognized as colliding with what the new policy calls “prohibited conduct.” Basic to the new policy is the recognition that free speech can create a “hostile environment” on campus for members of groups protected under U.S. civil rights law (Title VI) as well as violating campus norms relating to the maintenance of an inclusive university campus. In balancing conflicting commitments to [1] free speech and academic freedom and [2] the creation of an inclusive non-Hostile campus environment.
Implicit is the concern that Columbia University is a hostile environment, that student groups like SJP and JVP and their faculty supporters contribute to the creation of a hostile envirnoment on campus.
What strikes this reader as utterly new are three things. One is the conceptualization of the university as an eco-system or environment. The second noteworthy feature relates to what constitutes discriminatory and harassing expression. The policy recognizes that free speech is not the same as discriminatory and harassing speech and expression. The new policy recognizes that offline and online speech, including (chants and flyers) and restrictions placed on the participation of students can create a Hostile Environment on campus impeding the participation of other students. The third feature in the new policy speaks directly to the politics of Israel and Palestine. Threading the needle, the policy prohibits discriminatory and harassing language that create a hostile environment related to the policy and practices of a “particular country” while, at the same time, protecting the free expression of “opinion on political, social, or similar topics.”
I am providing below selections from the policy statement that speak to these basic points. (The use of bold font is my own). As codified, what stands out in the new policy is the seriousness of concern about how “prohibited conduct” creates a “Hostile Environment” (which the text of the policy identifies in large caps):
Columbia University is committed to fostering a learning, living, and working environment free from Discrimination and Discriminatory Harassment on the basis of an individual’s actual or perceived membership in, or association with, a Protected Class, and to taking appropriate action to address such Prohibited Conduct. These commitments extend to all of the University’s programs and activities, including all academic, extracurricular, and University-sponsored activities.
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The University recognizes its responsibility to increase awareness of Discrimination and Discriminatory Harassment; to prevent their occurrence; to diligently address Reports of Prohibited Conduct; to support Students and other members of the Columbia community who experience Discrimination, Discriminatory Harassment, and other Prohibited Conduct; and to respond fairly and firmly when University policy is violated. Columbia also recognizes its obligation to treat fairly Students, Active Alums, Student Groups, and other members of the Columbia community who are accused of engaging in Prohibited Conduct. In addressing these issues, all members of the University community must respect and care for one another in a manner consistent with Columbia’s academic mission and deeply held community values.
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This Policy is designed to provide a safe and non-discriminatory educational environment and to meet relevant legal requirements, including Title VI of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, Section 504 of the Rehabilitation Act of 1973, New York State Education Law 129-B, and other New York State Education and Human Rights Laws, as well as other federal, New York State, and New York City laws that prohibit discrimination on the basis of certain enumerated categories
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The University will take tailored and appropriate measures to address all forms of Discrimination and Discriminatory Harassment, including when Prohibited Conduct involves social media postings, flyers or posters on campus, Student Groups or unrecognized Student organizations thatcreate or contribute to a Hostile Environment in a University program or activity or at the University as a whole. A Hostile Environment can be created by unwelcome conduct that, considering the totality of the circumstances, is subjectively and objectively offensive and is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from any of the University’s educational programs or activities. Prohibited Conduct need not be directed at any particular individual or group of individuals to contribute to a Hostile Environment. It also need not be based on a Complainant’s actual membership in a Protected Class; rather, it may be based on a Complainant’s perceived membership in or association with a Protected Class.
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In each instance where the University receives a Report alleging Discrimination or Discriminatory Harassment, the University will, among other steps, assess whether any alleged speech or conduct, based on the totality of the circumstances, created or contributed to a Hostile Environment in any University program or activity or at the University as a whole. The University will also assess whether alleged speech or conduct, described in more than one Report, cumulatively created or contributed to such a Hostile Environment. Where the University determines that any alleged speech or conduct has created or contributed to a Hostile Environment, the University is committed to taking reasonable steps, including but not limited to those described in this Policy, to promptly address the Hostile Environment and its effects, prevent its recurrence, and provide support to those affected
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[Prohibited Conduct]
Discriminatory Harassment may include, but is not limited to, the following acts that denigrate or show hostility or aversion toward one or more actual or perceived members or associates of a Protected Class: verbal abuse; epithets or slurs; negative stereotyping (including, but not limited to, stereotypes about how an individual looks, including skin color, physical features, or style of dress that reflects ethnic traditions; a foreign accent; a foreign name, including names commonly associated with a particular shared ancestry or ethnic characteristics; or speaking a foreign language); threatening, intimidating, or hostile acts; denigrating jokes; insulting or obscene comments or gestures; calls for genocide and/or violence; and the display or circulation of written or graphic material in any form, including but not limited to social media.
Phone calls, text messages, emails, and social media usage can create or contribute to a hostile working, learning, or campus living environment or otherwise constitute Discriminatory Harassment, even if the communications occur away from campus.
Speech or conduct expressing views regarding a particular country’s policies or practices does not necessarily constitute Discriminatory Harassment based on national origin. However, if harassing speech or conduct that otherwise appears to be based on views about a country’s policies or practices is directed at or infused with discriminatory comments about persons from, or associated with, that country or another country, then it may constitute Discriminatory Harassment. The use of code words may implicate the Policy. In responding to Reports concerning speech or conduct regarding a country’s policies or practices, the Office will consider whether such speech or conduct is an exercise of academic freedom and inquiry. Each reported incident of alleged speech or conduct will be assessed on a case-by-case basis. The Office will determine whether alleged speech or conduct constitutes Discrimination or Discriminatory Harassment, including by creating or contributing to a Hostile Environment, by considering the totality of the circumstances surrounding an alleged incident or course of conduct.
Each reported incident of alleged speech or conduct will be assessed on a case-by-case basis…
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The factors the Office will consider when assessing whether speech or conduct constitutes Discrimination or Discriminatory Harassment may include, but are not limited to, the following:
• The nature and severity of the alleged speech or conduct. The Office will be more likely to find that alleged speech or conduct constitutes Discrimination or Discriminatory Harassment if it involves words or symbols that are generally understood to express hatred of, or calls for violence against, one or more Protected Classes (e.g., racially charged epithets, language suggesting that Protected Class members or associates should be harmed or killed, etc.).
• Whether the alleged speech or conduct was intended and/or likely to incite violence, Discrimination, or Discriminatory Harassment, or to create or contribute to a Hostile Environment.
• The frequency, duration, and location of the alleged speech or conduct, and the identity, number, and relationships of the persons involved. For instance, words that might not constitute Discriminatory Harassment if used by a Student as part of a classroom discussion could constitute Discriminatory Harassment if shouted repeatedly by a Student or group of Students at one of their peers.
• Whether the alleged speech or conduct was directed at an identifiable individual or group of individuals. In the case of allegations of discriminatory and/or harassing speech or conduct on social media, the Office will consider whether a post mentions, tags, or links to specific individual(s) or their social media accounts. The Office is more likely to find that such alleged speech or conduct, whether in person or on social media, constitutes Discrimination or Discriminatory Harassment when it is directed at an individual or group of individuals than when it is not. In addition, the Office will consider whether alleged speech or conduct is directed at one or more University Affiliates.
• Whether the Respondent was aware that the alleged speech or conduct took place in the midst of, created, or contributed to a Hostile Environment in any of the University’s activities or programs or at the University as a whole. For instance, in evaluating a Report of alleged speech or conduct that may constitute Discriminatory Harassment, the Office will consider whether the Respondent was aware that similar speech or conduct recently occurred.
• Whether the Complainant had any alternative to being subjected to the alleged speech or conduct. For instance, the Office will consider whether the alleged speech or conduct took place in a location the Complainant had to enter or pass by in order to access any of the University’s programs and activities and whether the Complainant could have chosen to avoid the alleged speech or conduct without detriment to the Complainant’s ability to access any University programs or activities.
• Whether there is any difference in status/authority between the Respondent and the Complainant.
• Whether the alleged speech or conduct otherwise impeded or limited the Complainant’s participation in or ability to benefit from any University program or activity.
• Whether the alleged speech or conduct, even if offensive, constitutes an expression of opinion on political, social, or similar topics. The Office will not determine that alleged speech or conduct constitutes Discrimination or Discriminatory Harassment solely because it may be considered offensive.
• Whether the alleged speech or conduct, even if offensive, constitutes an exercise of academic freedom on the part of a Respondent.
