Analysis of an Acceptable College Code of Conduct

©2014 Kenneth N. Margolin

Having analyzed a repressive college code of conduct – the University of Massachusetts Amherst – in this article, I will discuss an acceptable student code of conduct, and have chosen the code of Cleveland State University. As is the case with UMass. Amherst, Cleveland State is a public college and thus subject to the guarantees and prohibitions of the United States Constitution. Cleveland State's code was given a "green light" by the Foundation for Individual Rights in Education (FIRE), a nonprofit organization that tracks college disciplinary codes, and opposes colleges that improperly limit free speech. The key provisions of the Cleveland State Student Conduct Code are similar to those in the UMass. Amherst code and the codes of most colleges and universities. What distinguishes an oppressive code of conduct from one that respects the free exchange of ideas, is often only a few words. I recommend reading my article, Analysis of a Repressive College Code of Conduct, before reading this one.

Significantly absent from the Cleveland State code is any requirement that students treat others with "respect" or "civility." While politeness on campus may be a worthy goal, and a student handbook may even encourage temperate behavior, rendering a sharp tongue or aggressive communication of unpopular ideas, a violation of required modes of behavior, as repressive codes often do, will inevitably lead to charges for little more than nongenteel speech, and will chill free expression campuswide. The Cleveland State code wisely prohibits only actions that target an individual or that impede another student's ability to learn and live without harassment on campus. Thus Cleveland State prohibits interference with another's lawful use of the university's facilities. Assault, attempted assault, and threats of physical violence are prohibited. Harassing a student or faculty member violates the code of conduct. "Harassment," however is not defined as including mere words that offend or bother another member of the campus community. In order to have been guilty of the infraction of "harassment," one must intend to interfere with the rights of another. "Harassment" is defined as:

Behavior directed at another person, including but not limited to, stalking, physical force, or violence, that involves a deliberate interference or a deliberate threat to interfere with an individual's personal safety, academic efforts, employment, or participation in auhtorized University functions and that causes the person to have a reasonable apprehension that such harm is to occur.

Sexual harassment is of course banned, as it must be under federal Title IX. Sexual harassment in the Cleveland State code of conduct pretty much tracks the definition of Title IX. Quid pro quo sexual harassment is prohibited as it is on every campus (quid pro quo sexual harassment is the seeking of sexual contact in exchange for some benefit, such as a good grade or participation in any university activity). Unwelcome sexual advances, and other verbal or physical conduct also violate the code if they have "the purpose or

effect of unreasonably interfering with an individual's academic or work performance or creates an intimidating, hostile or offensive university environment." Initiating sexual contact when the initiator knows or should know that the other person's ability to understand or resist the contact is "substantially impaired" also violatets the cde.

Granted, there is room for subjectivity in the Cleveland State code, as is the case with most laws. Theoretically, a student might consider overhearing George Carlin or Lenny Bruce jokes about sex (see my Analysis of a Repressive College Code of Conduct) as creating a "hostile or offensive university environment." Unlike UMass. Amherst and colleges with similar codes, Cleveland State does provide examples of classically protected free speech, as types of conduct that might violate its code of conduct. The Cleveland State code explicitly recognizes that students "have the right of expression to the extent permitted by law and University rules and regulations." While the university is subject to free speech laws, primarily the Constitution, whether it acknowledges the fact or not, the recognition of the right to free speech suggests that the types of harassment and sexual harassment that will result in disciplinary code charges at Cleveland State, are actions that target an individual with bullying speech, or aggressive conduct. Nothing in the Cleveland State Code of Student Conduct suggests that contentious speech alone jeopardize a student under the code.