The Proposed ISU Conduct Code: An Unconstitutional Attack on Free Expression

(Below is an op-ed I wrote for the Indy newspaper at Illinois State University this week about the proposals for the new code of student conduct there.)

The proposed new ISU Code of Student Conduct (pdf) represents a disastrous attack on free speech on campus. The proposal is unconstitutional on its face, and highly likely to be enforced in a way that restricts the First Amendment rights of students.

Several years ago, ISU administrators tried to impose speech zones to limit free expression on campus to just a few areas; widespread campus outrage led to an overwhelming vote against the idea in the Academic Senate. With this new proposed speech code, the ISU administration is trying to implement a far greater restriction on student freedoms, but few people seem to be aware of it. Here are just a few of the most objectionable parts of the proposed speech code, and why it’s a bad idea.

Under rule IV. A., a student can be punished for something “when the activity substantially affects the University community.”

This is an extraordinarily vague standard. Almost everything anyone does could be held to substantially affect the University community.

Under IV. E. “Any person who willingly witnesses or observes a violation of the Code of Student Conduct may be subject to disciplinary action if that person chooses to remain present at the violation (passive participation).”

This is punishing people for merely witnessing an alleged violation. By this rule, if you are sitting in the apartment of a 20-year-old friend and see him drink a beer and don’t immediately leave the apartment, you can be punished by ISU authorities. It’s an extraordinary rule, particularly given the vague rules about what a violation of the Code is elsewhere.

Under rule IV. G. “Dean of Students or his/her designee shall develop procedures and policies for the administration of the disciplinary process that are consistent with the provisions of the Code of Student Conduct.”

These policies and procedures are very important, and should be developed with student and faculty input. In addition, these procedures should be approved by the Student Government and other relevant bodies, not arbitrarily determined by the administration without oversight.

According to rule IV. H. “Formal rules of due process, procedure, and/or technical rules of evidence such as are applied in criminal or civil courts are not used in the campus disciplinary process.”

Although not all court rules should be applied to campus disciplinary procedures, this rule seems to imply that are no procedures or rules of evidence, and that students have absolutely no due process rights.

IV. K. “The University cannot foresee all violations of the Code of Student Conduct within the regulations (see Section V). As such, students may be subject to disciplinary action when their behavior is detrimental or disruptive of the goals and/or purposes of the University even if not specifically provided for in the Code of Student Conduct.”

This is incredibly dangerous. In effect, this provision says that you can ignore everything else in these rules and punish anyone deemed “detrimental” to the “goals” of the University. This provision should be entirely eliminated. Rule IV.C. already allows students to be punished for breaking any law, so there is no need to apply a broad, vague rule allowing them to punished for any reason.

Rule V.A 4c. bans “possessing or using any device classified as a weapon by the State of Illinois on University property or at any University related event.”

According to the state of Illinois, a weapon includes not just guns but also “any other object if used or attempted to be used to cause bodily harm, including but not limited to, knives...” Does this mean that anyone with a kitchen knife in their dorm room is breaking the rules? Clearly, the meaning of weapon needs to be better defined, particularly since students ought to be informed of exactly what a weapon is without having to look up the Illinois Combined Statutes.

Rule V. A5 b. prohibits “engaging in any action where an individual is encouraged to engage in conduct of an unbecoming or humiliating nature, or which in any way detracts from an individual’s academic pursuits”

This part of the anti-hazing goes too far because “unbecoming” is too vague and “in any way detracts” is far too easy to violate.

According to rule VI..C. 3. “Disorderly Conduct. Violations include but are not limited to: a. engaging in conduct that is disruptive, lewd, or indecent, regardless of intent, which breaches the peace of the community.”

Disorderly conduct is one of the vaguest parts of the law, and ISU needs to come up with a more specific definition of what “disruptive” activity really is.

The restrictions on student organizations (such as the Indy) are even more severe. According to rule IV.B. “Students who are members of a registered student organization involved in a violation of the Code of Student Conduct may be subject to discipline both as a member of the organization and as an individual.”

This is highly objectionable, because no individual should be subject to discipline merely for being a member of a student organization that violates the conduct code.

Under rule X.D. “Registered student organizations are collectively responsible for any actions committed by members that serve to reflect upon the organization as a whole or upon the University community.”

This is a dangerously vague rule, because it creates collective punishment for student organizations if any member does something deemed offensive to someone.

There are many other flaws in the proposed ISU Code of Student Conduct. There needs to be a provision here giving university administrators the power to dismiss complaints that clearly do not violate campus procedures (along with a procedure for the aggrieved party to appeal this decision). Otherwise, the mere process of investigation can have a chilling effect on free speech, and complaints can be used to intimidate others. The code also needs a clear statement that stealing free newspapers (such as the Indy) is a form of theft.

However, many of these flaws exist under the current code, and they’re common at colleges across the country, as a quick glance at FIRE’s website (thefire.org) shows.

The biggest omission from the proposed speech code is a clear statement of student rights. The AAUP more than 40 years ago (along with student and administrator groups) made a statement of student rights. ISU ought to adapt this statement for its own use, and create a new Code of Student Conduct that follows these principles, respecting the constitutional rights of its students.