Click Here to Read the Complete Report

A core tenet of most higher education institutions is to create an environment where students are encouraged to think critically and discuss important issues of the day. Any institution with policies that reduce or hamper the ability of students to have meaningful dialogue fails to achieve that objective. While public and private colleges and universities have different legal standards when it comes to upholding free speech and expression, both should aspire to maximize students' freedom. As a private institution, Hofstra University is not bound by the First Amendment standards prescribed to public schools, but the university makes promises to its students and faculty that may provide a legal binding for upholding free speech and expression on campus. 

Hofstra University Student Handbook: 

• “Hofstra strives to … encourage freedom of thought and expression.”

• “Through its policy on academic freedom for Hofstra students, the University recognizes that in their pursuit of knowledge, critical thinking, and understanding, students should be free to enjoy open-minded inquiry both inside and outside the classroom.”

Academic Freedom and Civil Liberties of Students at Hofstra University:

•  “The student government, student organizations, and individual students should be free to discuss, pass resolutions upon, distribute leaflets, circulate petitions, and take other lawful action respecting any matter which directly or indirectly concerns or affects them.” 

While Hofstra students are promised the right to express themselves freely both “in and out of the classroom”, there are a handful of policies that contradict these promises. The Foundation for Individual Rights and Expression (FIRE) conducted a complete analysis of Hofstra University’s policies and rated their alignment to free speech. FIRE ranks universities by assigning a “red-light”, “yellow-light”, or “green-light”. A red-light policy or institution indicates that the policy or school infringes upon students rights. A yellow-light indicates that the policy or school poses a risk of infringing on students’ rights. A green-light indicates there are no known violations or risks to students’ rights. A “warning” ranking means that students at the institution should not expect any free speech and expression rights because their code of conduct places higher emphasis on other values that suppress or eliminate some speech. 

Hofstra’s “Red-Light” Policies:

• The “Campus Demonstration Policy” requires that any student or organization that would like to hold a protest must register and be approved 7-days prior to the event.

  • This requirement prevents students from engaging in spontaneous expressive activities, which are typically protected under First Amendment standards and are oftentimes necessary in order to meaningfully respond to immediate or still-unfolding events. 

• The “Prohibited Bias and Discriminatory Harassment Policy” earns a “red-light” on multiple fronts.

  • The policy bans “Bias-Motivated Interaction or Contact” and “Discriminatory Harassment,” terms that are defined so broadly that they include a great deal of protected expression. 

  • The definition of “Discriminatory Harassment” does not meet the legal standard for peer harassment in the educational setting and, as a result, could too easily be applied to restrict protected speech. 

  • Students should not be subjected to harassment or bullying per the standards provided by the law. Campus policies that are overly vague hampers students ability to speak freely and create a culture of open dialogue. Students may say things that are objectionable or offensive to some. These statements should be challenged and face the deserved social consequences. 

• Some provisions of the Student Handbook’s “Code of Conduct” section on harassment are overly broad and prohibit speech that could be viewed as “taunting” or “annoying” to another student. 

  • Students should have the full opportunity to learn without being overburdened by other students'. While Hofstra’s policies should ensure students excel in and out of the classroom, they must do so in a way that allows for free speech and expression.

Hofstra’s “Yellow-Light” Policies:

• The Student Handbook’s “Code of Conduct” prohibits speech that is “unbecoming.”

  • The university should not mandate that students conform their behavior to university values, and should instead provide these values as aspirational guidelines.

• The Code of Conduct also prohibits students from “Using obscene and/or profane language or gestures or speaking in a way that is inconsistent with the Hofstra Code of Community Standards.”

  • This policy is overly broad, leaving students to second guess what they say and self-censor. While using obscene or profane language or gestures may be included in a larger occurrence of harassment, these actions alone are too vague. 

• The Code of Conduct’s policy on “Solicitation” prohibits anyone from “distributing, providing, or selling pamphlets, advertisements, or other goods or services to members of the University community” without prior-approval from the university. 

  • Prohibiting commercial activity without approval is completely warranted and allowed under free speech standards, but this policy includes more than commercial activities. 

  • If students are distributing flyers or attempting to collect signatures to start a club or organization, they would be prohibited under this policy. 

  • The policy should be revised to allow for spontaneous distribution of non-commercial materials in publicly available outdoor areas of the campus.

• The “Harassment Policy” does not follow standards upheld by the Supreme Court and is overly broad. 

  • The provided definitions do not include an objective, reasonable standard by which to evaluate objectionable conduct.

• The definition of sexual harassment in the Harrasment Policy is incomplete per the legal standard provided by the Supreme Court.

  • The policy should include the “reasonable person” standard, and be “severe and pervasive”, rather than “severe or pervasive.”

Click Here to Read the Abbreviated Report

First off, while Hofstra, as a private university, isn’t legally bound by the First Amendment, it makes institutional promises that bind it morally, and perhaps legally, to protect free speech. Students reading these promises would, I think, reasonably expect that Hofstra will provide them with free speech rights commensurate with those of their peers at public institutions.

For example, the Student Handbook’s “Code of Community Standards” states that “Hofstra strives to … encourage freedom of thought and expression.” The “Campus Demonstration Policy,” which can also found in the Student Handbook, explains that, “[t]hrough its policy on academic freedom for Hofstra students, the University recognizes that in their pursuit of knowledge, critical thinking, and understanding, students should be free to enjoy open-minded inquiry both inside and outside the classroom.” Further, that referenced policy on “Academic Freedom and Civil Liberties of Students at Hofstra University” provides: “The student government, student organizations, and individual students should be free to discuss, pass resolutions upon, distribute leaflets, circulate petitions, and take other lawful action respecting any matter which directly or indirectly concerns or affects them.” 

There are, however, several policies at Hofstra that infringe on speech that is protected under First Amendment standards. I’ve provided how they would be rated by FIRE below. 

First, the “Campus Demonstration Policy” discussed above is further excerpted below: 

[A]ny registered Hofstra University student(s) or student organization that wishes to hold an on-campus demonstration must complete a Campus Demonstration Proposal Form at least seven (7) days prior to the proposed demonstration and submit it to the Office of Student Leadership and Engagement, Room 244 Mack Student Center. This form can be accessed here https://www.hofstra.edu/student-leadership-engagement/about.html and also found on the OSLE Policies & Procedures pages of the Hofstra website. The Office of Student Leadership and Engagement will work in conjunction with the Office of the Assistant Vice President and Dean of Students and Department of Public Safety on both the review and approval of the demonstration proposal. 

This policy would earn a “red light” rating from FIRE. While the university may, under First Amendment standards, put reasonable “time, place, and manner” restrictions on public expression in place to protect university activities from disruption, requiring all assembly on campus to be approved at least seven days in advance is not reasonable. This requirement prevents students from engaging in spontaneous expressive activities, which are typically protected under First Amendment standards and are oftentimes necessary in order to meaningfully respond to immediate or still-unfolding events. Indeed, after waiting seven days for their demonstration to be approved, the issue the students wished to express themselves about will very likely be yesterday’s (or last week’s!) news. Instead, the school should allow students to spontaneously demonstrate in a non-disruptive manner in publicly available outdoor areas on campus, and should only require such burdensome registration lead times for large events, like concerts or gatherings reasonably expected to attract over 100 people, which are inherently likely to cause a disruption. 

Next, the “Prohibited Bias and Discriminatory Harassment Policy” from the Student Handbook is excerpted below: 

Bias and discriminatory harassment are prohibited in the campus environment …

Any student who commits, aids, or attempts to commit any of the acts prohibited by the policies listed in this Policy on University property or during the course of a University activity is subject to disciplinary action under the procedure set forth below. 

…

Bias-Motivated Interaction or Contact. Bias-motivated interaction or contact is behavior, whether physical or verbal, or in-person or through the use of electronics or by any other means, that is motivated by bias based on actual or perceived race, color, religion, sex, sexual orientation, gender, gender identity or expression, age, national or ethnic origin, physical or mental disability, or marital or veteran status, that has the effect of intimidating, taunting, humiliating, or otherwise impeding the rights of another individual. 

Discriminatory Harassment. Discriminatory harassment is verbal, nonverbal, expressive, or physical conduct that denigrates or shows hostility or aversion to an individual on the basis of that person’s Protected Characteristic and creates an intimidating, hostile, or offensive academic or residential environment or otherwise adversely affects the individual’s academic opportunities or participation in a University program, activity, or benefit. Hofstra’s definition of discriminatory harassment is interpreted and applied consistent with current legal standards, as well as accepted standards of mature behavior and objective reasonableness. 

Examples include: • Verbal abuse, insults, or ridicule based on a person’s disability • Displaying or distributing offensive materials, pictures, or toys that denigrate or show aversion to an individual or group based on religion • Unwanted flirtations, advances, or propositions of a sexual nature • Threatening or intimidating an individual because of their national origin • Stereotyping or using slurs or epithets because of an individual’s or group’s race • Other adverse treatment because of a Protected Characteristic

…

Students found responsible for a violation are subject to sanctions as set forth under the “Sanctions” section of the Code of Community Standards. 

This policy would earn a red light rating from FIRE. The policy bans “Bias-Motivated Interaction or Contact” and “Discriminatory Harassment,” terms that are defined so broadly that they include a great deal of protected expression. 

First, the prohibition on “Bias-Motivated Interaction or Contact” makes punishable any verbal behavior that is seen as being motivated by bias based on a personal characteristic and that has the effect of “intimidating,” “taunting,” or “humiliating” another person. As a result, a single instance of subjectively biased speech that embarasses someone — which would typically be protected under First Amendment standards —  is subject to punishment. This provision should be removed from the policy, leaving the ban on harassment. 

Second, the definition of “Discriminatory Harassment” does not meet the legal standard for peer harassment in the educational setting and, as a result, could too easily be applied to restrict protected speech. 

Under the standard for student-on-student (or peer) harassment provided by the Supreme Court, alleged harassment must be conduct that is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” Davis v. Monroe County Board of Education, 526 U.S. 629, 651 (1999). As the Court’s only decision to date regarding the substantive standard for peer harassment in education, Davis is controlling on this issue. 

In contrast, this policy’s definition of discriminatory harassment does not require that conduct is “severe, pervasive, and objectively offensive.” Without requiring that conduct is evaluated from the perspective of a reasonable person in the victim’s shoes, a person’s subjective view of what constitutes harassment is sufficient to meet the policy’s definition of harassment. As a result, a single expressive act that is seen as subjectively hostile, and that a person claims has adversely affected an individual’s education (no matter how unreasonable that claim may be), is punishable. Further, the policy bans conduct that “creates an intimidating, hostile, or offensive academic or residential environment” without describing what would constitute the creation of such an environment. This definition should be revised to fully track the Supreme Court’s standard from Davis. 

Last, the policy also includes a list of examples of discriminatory harassment, saying that “[e]xamples include” items such as “[v]erbal abuse, insults, or ridicule based on a person’s disability” and “[s]tereotyping or using slurs or epithets because of an individual’s or group’s race.” While these types of expression could be part of a larger pattern of repeated conduct that would constitute discriminatory harassment, most of the time they are protected speech. Students reading this policy, however, are likely to assume such conduct is prohibited across the board and self-censor accordingly. Instead, the policy should clearly tie any listed examples back to the controlling definition of discriminatory harassment. 

Next, the “Code of Conduct” from the Student Handbook includes the following ban on “Conduct Unbecoming”: 

Behavior unbecoming of a Hofstra student, including but not limited to behavior that violates the University’s Mission Statement, the Core Values of the Division of Student Enrollment, Engagement, and Success, or that exhibits flagrant disrespect for persons, flouting of common standards of decency, or contempt for the generally accepted values of the intellectual community.

This policy would earn a “yellow light” rating from FIRE. This sort of catch-all policy gives administrators license to take action against any behavior — potentially including speech — that is deemed to have violated the university’s mission, values, or that is found flagrantly disrespectful or indecent. However, under First Amendment standards, speech cannot be limited on those bases alone. The university should not mandate that students conform their behavior to university values, and should instead provide these values as aspirational guidelines.

The Code of Conduct also includes the following provision on “Harassment”: 

Any of the following constitutes harassment: 

• Physically or emotionally threatening or taunting another person, or bullying another person, whether these actions are taken in person, electronically, or by any other means. 

• Engaging in a course of conduct or repeatedly committing acts that alarm or seriously annoy such other person(s) and that serve no legitimate purpose. 

Where the behavior comes within the definition of prohibited conduct under the Policy Prohibiting Bias and Discriminatory Harassment, please refer to that Policy in Section II.

This policy would earn a red light rating from FIRE. As discussed above, the proper standard for peer harassment in the educational setting, which allows the university to meet its dual obligations to respond to unlawful harassment and to safeguard protected expression, requires that conduct is “so severe, pervasive, and objectively offensive, and that so undermines and detracts from the victims’ educational experience, that the victim-students are effectively denied equal access to an institution’s resources and opportunities.” 

This policy, however, makes punishable “emotionally … taunting another person, or bullying another person.” Under such a broad definition, simple teasing could be sanctioned as harassment. Further, the second provision may be aimed at stalking, but prohibiting engaging in a course of action that seriously annoys another person includes protected speech. This policy should be revised to track the Supreme Court’s standard from Davis. 

Next, the Code of Conduct’s ban on “Infringement of Rights” is excerpted below: 

Violating or disregarding the rights of another member or guest of the University community. Examples of infringement of rights include but are not limited to: …

• Using obscene and/or profane language or gestures or speaking in a way that is inconsistent with the Hofstra Code of Community Standards.

This policy would earn a yellow light rating from FIRE. “Using obscene and/or profane language or gestures” could potentially be a part of conduct that violates someone’s rights, but holding it out as an example of infringement of rights across the board threatens to chill protected speech. Further, students are left to guess at what may constitute “speaking in a way that is inconsistent with the Hofstra Code of Community Standards.” Setting forth aspirational community standards for students to conform their speech to would be permissible under First Amendment standards, but by listing this as an example of prohibited infringement of rights, the policy makes adherence to these standards mandatory. Instead, the policy should be revised to remove the overbroad examples.

Next, the Code of Conduct bans “Solicitation”:

Distributing, providing, selling, or inviting someone else to distribute, provide, or sell pamphlets, advertisements, or other goods or services to members of the University community without the approval of an appropriate University official or in violation of University guidelines.

This policy would earn a yellow light rating from FIRE. Requiring advance approval for commercial solicitation on campus would be permissible under First Amendment standards, but this policy doesn’t define solicitation as including only commercial materials. As such, requiring prior administrative approval of non-commercial student expressive activities, such as soliciting sign-ups for a new student group, is an impermissible prior restraint on speech. The policy should be revised to allow for spontaneous distribution of non-commercial materials in publicly available outdoor areas of the campus.

Moving on from the Student Handbook, Hofstra’s “Harassment Policy” is excerpted below: 

Harassment is the creation of a hostile or intimidating environment in which verbal or physical conduct based on one’s protected characteristics or beliefs, because of its severity and/or persistence, is likely to significantly interfere with an individual’s work or education, or enjoyment of other University opportunities or activities. Harassment also includes coercive or threatening behavior based on one’s protected characteristics or beliefs. 

…

For the purposes of this policy, sexual harassment may be defined as unwelcome sexual advances, requests for sexual favors, and other nonverbal, expressive or physical conduct of a sexual nature, when … such conduct has the purpose or effect, when judged from the perspective of a reasonable person in the position of the complaining individual, of unreasonably interfering with an individual’s academic or work performance, or creating an intimidating, hostile or offensive environment for working, learning, or enjoying other University opportunities, programs and activities. Determining whether sexual conduct creates an intimidating, hostile, or offensive environment or substantially interferes with an individual’s academic or work performance or enjoyment of other University opportunities depends on the specific facts and the context in which the conduct occurs. To constitute sexual harassment, the conduct must be severe or pervasive. 

This policy would earn a yellow light rating from FIRE. This policy’s definitions of “[h]arassment” and “[s]exual harassment” do not track the Supreme Court’s standard for peer harassment in the education and, thus, put protected speech at risk of punishment. 

First, the policy defines harassment as creating an environment in which verbal conduct based on protected characteristics, because of its severity or persistence, is likely to significantly interfere with an individual’s education. It also says harassment includes coercive or threatening behavior. However, as discussed above, this definition does not include an objective, reasonable person standard by which to evaluate conduct. Further, banning conduct that is merely likely to cause an interference with a person’s education makes expression that has not had a harassing effect punishable. 

Second, while the sexual harassment definition does include a reasonable person standard, it still fails to sufficiently track the Supreme Court’s standard from Davis. It defines sexual harassment as unwelcome sexual conduct, when that conduct “has the purpose or effect, when judged from the perspective of a reasonable person in the position of the complaining individual, of unreasonably interfering with an individual’s academic or work performance, or creating an intimidating, hostile or offensive environment for working, learning, or enjoying other University opportunities, programs and activities.” However, this again makes punishable conduct that has the mere purpose of harassment, but that does not actually have a harassing effect. Further, it only requires that conduct is severe or pervasive, rather than severe and pervasive, per Davis. As a result, a single, severe joke — which would typically be protected under First Amendment standards — could lead to punishment. 

The policy’s definitions should be revised to fully track the Supreme Court’s peer hostile environment harassment standard.