Board of Trustees to consider controversial bullying policy

Some criticize proposed policy as infringing on free speech

By: Steven Wyble

Posted: 11/8/09

This Friday, Nov. 20, Eastern Washington University's Board of Trustees will decide whether to approve a proposed bullying policy that some have criticized as potentially restricting free speech.

The policy in part defines bullying as, "behavior that is intentional, targeted at an individual or group, repeated, hostile or offensive, and creates an intimidating and/or threatening environment which produces a risk of psychological and/or physical harm," and also says that bullying behavior may include, "inappropriate behaviors such as abusive language, derogatory remarks, insults or epithets. Other offensive behaviors may include the use of condescending, humiliating, or vulgar language, swearing, shouting or use of unsuitable language, use of obscene gestures, or mocking."

Comments on an online discussion thread, which was on Eastern Washington University's policy Web site, were mixed, with some comments clearly approving of the policy and others expressing concern that it could violate the first amendment's protection of free speech.

One comment left by an anonymous user said, "This proposed policy is at least a good start to correcting the 'let's just sweep it under the carpet' attitude frequently displayed by Human Resources. . . . Thanks to the committee that worked for at least a year on this proposal."

However, another anonymous user said, "This policy is one of the scariest policies I have ever seen proposed at EWU. It stifles creative discussion and disagreement. It sets a dangerous precedent for squelching academic freedom. . . . The broad interpretation of the policy essentially gives opportunity for someone who has his or her feelings 'hurt' by constructive criticism to retaliate by charging another of bullying."

Suzanne Milton, a member of the task force that drafted the proposed policy, explained that the faculty union had expressed the need of some kind of task force to look at establishing an anti-bullying procedure. In part, this was in response to Washington State House Bill 1643 which, if passed, would require that "each regional university shall adopt, or amend, a policy that prohibits the harassment, intimidation, or bullying of any student or staff member."

Washington state already has a law, RCW 28A.300.285, which addresses harassment, intimidation, and bullying in the kindergarten through 12th grade education system.

Laurie Connelly, Associate to the President, didn't think the policy conflicted with freedom of speech.

"I think that any time you try to address workplace behavior, that you try to define that a workplace behavior is not acceptable, you try to be concerned that we're not trying to impact people's rights to speak on issues," she said. She said the policy tried to be as specific as possible when defining bullying to ensure that free speech would not be infringed.

William Creeley, Director of Legal and Public Advocacy for the Foundation for Individual Rights in Education (FIRE), had a mixed view of the bullying policy.

"It's overbroad and vague in ways that make it constitutionally suspect," he said. "It's not the worst cyber bullying or bullying policy I've seen, but it's not the best, either. I think that it probably represents a threat to speech on campus. I wouldn't call it an extreme threat as with some of the bullying policies FIRE has seen at other schools across the country, but it's definitely worrying."

Creeley said that the policy isn't "blatantly unconstitutional" since the policy requires that bullying behavior be repeated and that it create a threatening environment, but he added, "it's still vague around the edges and I would deem it constitutionally suspect."

Creeley said that FIRE's position is that most bullying policies are redundant because the behaviors the policies are meant to regulate are already prohibited by existing harassment policies, which he said "have the virtue of being pronounced constitutional and consistent with the first amendment by the Supreme Court."

Creeley cited Davis v. Monroe County Board of Education, a 1999 U.S. Supreme Court case, which states that speech loses first amendment protection and becomes "true harassment" when it is "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit."

"A well crafted harassment policy properly enforced would allow administrators to address the type of behavior that this bullying policy would address with the added benefit of being consistent toward the first amendment," he said.

Eastern Washington University does address harassment in two policies: EWU Policy 401-01, "Human Rights" and EWU Policy 603-02, "Violence Prevention, Control and Response." Lance Walker, a member of the bullying task force, said that the bullying policy was still necessary because those policies deal with criminal behavior, whereas bullying may not be illegal but is still wrong.

Creeley said the part of the policy that describes bullying as repeated, hostile, offensive, and creating an intimidating or threatening environment is consistent to some extent with the definition of harassment the Supreme Court determined in Davis v. Monroe. One of the potential problems he sees with the policy, however, is where it says that bullying behavior "creates an intimidating and/or threatening environment which produces a risk of psychological and/or physical harm."

"That's confusing, because there's no clear definition given of what could be psychologically harming. It's a little too easy to imagine speech that's merely disagreeable, unwelcome, unpopular, but altogether constitutionally protected being singled out by the application of this policy," said Creeley.

Because there were so many comments on the online discussion thread, two open forums were held to give EWU students and employees an opportunity to ask questions. One was held on the Cheney campus in the Showalter auditorium; Walker said 25-30 students attended. Another forum was held at the Riverpoint campus in Spokane, but Walker said that nobody came to it.

There were no questions at the Cheney open forum regarding freedom of speech, according to Milton, Connelly, and Walker. They said that the questions addressed how the policy would affect students, what would happen if someone filed a complaint against someone they were merely angry at, what kind of training would be provided, and whether people that observed bullying but hadn't actually been a target of it themselves could file a complaint.

Connelly said that complaints or reports of bullying would be followed by an investigation, which is subject to Eastern Washington University Guideline 401-01, "Investigations."

Connelly said that the Board of Trustees is made up of seven general trustees and one student. It will take a minimum of five votes in favor of the policy to approve it.

The Board of Trustees meeting will be held on November 20 at 3:30 p.m. in Tawanka, room 215 B and C, in Cheney.