TAR HEEL VIEW: Expel unlawful speech codes at UNC campuses

In his first month of work, an Appalachian State University administrator suggested students accused of “microaggressions” — fleeting and usually inadvertent comments perceived as prejudiced — could face consequences.

Chief Diversity Officer Willie Fleming, who was hired last May, told The Watauga Democrat newspaper in a June interview that his goals included creating a “zero-tolerance policy” for so-called bias incidents.

For the uninitiated, a microaggression can consist of thoughtlessly reinforcing racial stereotypes, such as asking an Asian classmate to help with a math problem. Other examples, from a UNC Chapel Hill employee blog post taken offline last year following widespread criticism, include referring to “Christmas vacation” and inviting someone to play a round of golf.

Most microaggressions are in the eye of the beholder. Virtually anything someone chooses to consider offensive, no matter how innocuous or well-meaning, can be tagged with the ominous label.

Fleming didn’t spell out specific punishments in the newspaper article, but his strong words appear to threaten more than a wag of the finger.

As a public university and an arm of state government, Appalachian State is legally required to uphold students’ First Amendment rights. Punishing a student for offensive speech would trample those rights and place ASU in constitutional contempt.

We asked App State communications director Megan Hayes to clarify Fleming’s comments in August, inquiring whether the university would uphold students’ right to free speech. We also asked why an academic like Fleming would use the term “zero tolerance” when peer-reviewed research discredits the strategy of rigid, one-size-fits-all punishments.

Hayes never answered our questions. It remains unclear whether this taxpayer-funded institution would thumb its nose at the Bill of Rights and subject adult students to sanctions over a momentary slip of the tongue that a classmate considers insensitive.

Appalachian State isn’t alone. Fifteen of the 16 University of North Carolina schools have restrictions on student speech written into their rulebooks, according to the Foundation for Individual Rights in Education.

N.C. Central, UNC Greensboro, the UNC School of the Arts and Winston-Salem State earned FIRE’s red-light rating for policies that “both clearly and substantially restrict freedom of speech.”

Only UNC Chapel Hill has a green-light rating after working with FIRE in 2015 to revise its problematic policies. The remainder of the UNC System campuses have yellow lights, indicating rules that “restrict a more limited amount of protected expression or, by virtue of their vague wording, could too easily be used to restrict protected expression.”

Speech codes are unlawful at public colleges and universities. When challenged in court, they crumble. FIRE’s Stand Up for Speech Litigation Project, begun in 2014, has never lost a case.

Lt. Gov. Dan Forest has proposed a state law that would ban speech codes at all UNC System campuses. It’s clearly a necessary step, and we hope lawmakers follow through when they return to Raleigh this month.

If a casual comment taken the wrong way can be a microaggression, then a published rule restricting free speech is a macroaggression. It’s one our state can ill afford to abide.

The Wilson Times