The University of Utah supports and is committed to open, free and robust discussion, debate, and exchange of ideas as an indispensable part of its educational mission, especially when the ideas expressed are controversial and unpopular. The university supports creative, thoughtful, and respectful discourse where conflicting perspectives are vigorously debated and thoroughly discussed. The university is dedicated to affording all members of its community protections of free speech, expression, assembly, religion, and press available under the U.S. and Utah constitutions and all applicable federal and state laws.

The university also has the obligation to ensure the safety and security of persons and property and that university operations, functions, and events are not disrupted. The time, place, and manner of persons exercising their rights of free expression, speech, assembly, and religious worship are subject to campus regulation. These regulations apply to all members of the university community, including students, faculty, staff, administrators, volunteers, and non-affiliated members of the public, while on university property.

It is not the role of the university to attempt to shield people from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although the university greatly values civility, and although all members of its community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect are not a justification for closing discussions of ideas, however offensive or disagreeable those ideas may be. Yet, the first amendment does not protect speech that falsely defames a specific individual, constitutes a direct physical threat, is obscenity or incites to violence. Additionally, the university may reasonably regulate the time, place, and manner of expression on university property and over its communication systems to ensure the expression does not disrupt ordinary campus functions and activities. (According to the Office of the Dean of Students website.)

The following FAQ responses come from the University of Utah’s Office of General Counsel and Office of Dean of Students. This document will be updated as new information becomes available.

FAQ

How does freedom of expression play out in a classroom? Is it the faculty member’s responsibility to moderate and facilitate student discussion and debate?

Note: Throughout this document, “faculty” refers to all tenure-line, career-line and adjunct faculty. In a Dec. 18 letter to faculty, Senior Vice Presidents Michael Good and Mitzi Montoya provided additional guidance for faculty. Read that letter here.

The University of Utah is committed to preserving both freedom of speech and the other rights in the U.S. Constitution that are guaranteed to campus community members. The Supreme Court has ruled that the First Amendment protects students and teachers in public schools, such as the University of Utah. However, the First Amendment rights of students are not absolute. Conduct that materially disrupts classwork or involves substantial disorder or invasion of the rights of others is subject to discipline.

Discussion and expression of all views relevant to the subject matter of a class are recognized as necessary to the educational process. However, students have no right to impinge on the freedom of instructors to teach or the right of other students to learn. If a student persists in behaving disruptively in class after the instructor has explained the unacceptability of such conduct, the instructor may dismiss the student from the class and may refer the matter to the Office of the Dean of Students. Upon dismissing a student from class, the instructor shall immediately notify the Dean of Students of the action so the student may be informed of the student’s right to appeal the dismissal. (According to DOS site.)

What is considered hate speech at the University of Utah? Is hate speech prohibited?

The term “hate speech” is not defined by law, and no such category exists as an exception to the First Amendment. Thus, even if speech is hateful or offensive, it is still protected by the First Amendment, unless it includes speech that is not protected (e.g., criminal threats, direct incitement to violence, obscenity, defamation). (According to DOS site.)

To be clear, criminal acts (such as assault, murder, arson, vandalism or threats to commit such crime) that are motivated by hate on the basis of race, color, religion, national origin, sexual orientation, gender, gender identity, or disability are not protected by the First Amendment and are considered hate crimes at the federal level. (According to justice.gov)

Regarding hate speech, legal scholars have supported the idea that the best way to respond to hateful or offensive speech is not to limit it but to encourage more speech. For example, as Justice Louis Brandeis famously wrote, “[i]f there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.” Whitney v. California, 274 U.S. 357, 377 (1927). Likewise, the American Civil Liberties Union believes that: “where racist, sexist, and homophobic speech is concerned…more speech—not less—is the best response.” This is particularly true at universities, where the mission is to facilitate learning through open debate and study and to enlighten. (According to DOS site.)

(Note: The Office of General Counsel is drafting a new guideline for student groups that may impact this answer.)

How do student groups form?

Students at the U may form and register as a student group of the university, as long as the group complies with the law and university policies. There are multiple types of recognized student organizations at the U, but just because a group is recognized does not mean the university supports its viewpoints.

There are three types of recognized student groups:

1. Registered student group—Any group of three current U students can form a registered student group. They are encouraged, but not required, to have an advisor. These groups are not a part of the university and cannot use university trademarks.
2. Affiliated student group—This category is only for sports clubs, fraternities and sororities. These groups are also not a part of the university, but they can use university marks with permission. Before a group can receive affiliated status, their application must be assessed by risk managers and the Office of General Counsel. Affiliated student groups must have an advisor and follow any additional department rules.
3. Sponsored student group—These groups are a part of the university, are sponsored by a college, department or other unit of the university, and can use university marks. They must have an advisor and may have a dedicated workspace on campus. All of the group’s financial accounts are through the university and they may receive donations under the university tax ID. They can also contract as the university. They must go through university contracting procedures because they are considered university entities. (According to this @theU article on student groups.)

What would constitute grounds for the U revoking a student group’s recognition?

All student organizations—registered, affiliated, and sponsored—are held to the Student Behavior Standards. If someone from the U community believes that a student group is violating these standards, they have the right to submit a complaint to the Office of the Dean of Students, which will take the appropriate actions to look into the issue(s). Keep in mind, however, that just because someone disagrees with a group’s speech doesn’t necessarily mean that party is violating the Student Behavior Standards. (According to this @theU article on student groups.)

Can the U prohibit a group from meeting on campus?

Under certain circumstances, yes. As a public campus, the university grants certain freedoms of expression and assembly guaranteed by the constitutions of the United States and the state of Utah. However, not all types of speech are protected. Free expression laws and legal concepts are extremely complex, and a complete summary is impossible to provide. Although speech and gatherings are permitted on campus, the U may regulate the time, place, and manner of free expression activities, as well as employee speech, as constitutionally appropriate. In general, a gathering may be prohibited when it:

• Significantly disrupts the operation of university programs or activities, including teaching, learning, and other operations.
• Infringes on the speech of another, for example, by creating noise to drown out a speaker, sometimes called the “heckler’s veto.”
• Is the university’s own speech. Governmental entities, including the U, maintain the ability to determine their own speech and regulate individuals speaking on behalf of the university.

University leaders will remind student groups of these guidelines at events where protests may be scheduled or spontaneously occur.

Where are the public forums on campus?

All outdoor spaces on campus are open to public speech. Certain other university spaces may be reserved through the scheduling office for speech activities.  (According to this @theU article on free speech.)

(More detail on Utah law here: https://le.utah.gov/~2017/bills/static/hb0054.html)

What is law enforcement’s role in managing expressions of free speech and protests?

The University of Utah Department Public Safety’s most important job is to preserve public safety on campus. That means maintaining order and preventing violence during the exercise of free speech—whether at a quiet student gathering, during a faculty member’s speech or panel discussion, an event with an invited guest, or at an organized protest in a public forum like the Union Building grass and walkways, or Marriott Library Plaza.

University Police are neutral and impartial. The nature of the speech they protect is not considered. Officers will only intervene in free speech activities when:

• One community member’s or group’s exercise of free speech moves beyond reasonableness and inhibits the lawful free speech of another, thereby creating a significant infringement and disruption of an event or gathering,
• The exercise of free speech violates university policies by disrupting the institution’s educational mission, including interrupting classroom lectures and student work, student services functions and building operations, or
• When criminal or unlawful activity breaks out—including threats of violence or physical assaults.

Use of force is always a last resort. University Police will communicate, negotiate and de-escalate first. If counter demonstration at an event is becoming unsafe, officers may advise and request that organizers consider rescheduling the event to allow for additional safety planning.

University Police receive regular training in managing free speech events so as to make certain students, faculty and staff can exercise their full rights under the First Amendment. If you are planning a public event and would like a safety analysis with staffing recommendations, including plainclothes officers’ attendance, call U Police at 801-585-2677.

What are the rules for posting fliers and signs on campus?

 Signs, notices and posters are covered by the university’s speech policy (V. Signs, Literature and Structures). Posted fliers can be notices of meetings and events, expressions of opinions about social and political topics, or simply art. They may express challenging, and even offensive, ideas. But they cannot include obscene content, be defamatory, or incite lawlessness.

(According to this @theU article on posting fliers and signs on campus.)

General guidelines:

• Only individuals or registered organizations from the campus community can post signs, notices, fliers or posters on bulletin boards and kiosks maintained by the U for general purposes and located on campus. (Note: The university and its units may designate bulletin boards for particular purposes not open to general posting).
• The university entity, group or sponsor must be clearly identified on the posting.
• University trademarks and brands may not be used without permission.
• Only one sign, notice or poster affiliated with a specific event is permitted on a single bulletin board at any one time. Up to a total of three signs, notices, or posters authored or sponsored by the same organization or member of the University community are permitted on a single bulletin board at any one time.
• Signs, notices or posters are encouraged to be on an 8.5-inch-by-11-inch piece of paper. All signs, notices, or posters must be smaller than 8.5 inches by 14 inches.
• A sign, notice or poster may not cover another sign, notice or poster.
• All fliers must be dated. (Note: Expiration dates stamped on Union Building fliers do not indicate university approval of the content of the posting.)
• Postings are not allowed in classrooms.
• Signs, posters and fliers may not be posted on trees, buildings, walls or other structures.
• Messages cannot be written, painted or chalked on university property or on the personal property of others.
• The University may remove any sign, notice, or poster that does not meet these guidelines or for which the expiration date has passed.

Groups that follow these rules may still post fliers and signs that are offensive to identities, beliefs and cultures of other campus community members. While obnoxious, divisive and simplistic, those statements do not violate the university’s free speech guidelines as outlined by state and federal laws.

Content that is posted without following these rules is subject to immediate removal by the University.

What if offensive fliers or signs are posted in my classroom? Who has the responsibility to take those down?

Per the university’s speech policy (V. Signs, Literature and Structures), reasonable public spaces indoor and outdoor are provided by the university for the posting of notices, posters, signs, etc. that follow the above guidelines and processes. The university does not permit postings in classrooms. If fliers, signs or posters are posted in a classroom, faculty have the right to remove them.

Faculty could consider discussing their reasoning behind such actions with students. The Martha Bradley Evans Center for Teaching Excellence offers advice on how to handle challenging situations in the classroom. Below are a few strategies:

Consider the following strategies and resources to facilitate difficult discussions and effectively address challenging situations in the classroom:

• Define the objective of your discussion and explain your role as facilitator of the discussion
• Role model respectful language and behavior
• Anticipate your (and students’) triggers
• Address emotional responses from students early on
• Refer to established discussion guidelines
• Intentionally guide the discussion
• Respect silence and ask to hear new voices
• Connect the discussion to course content
• Allow time for student and self-reflection
• Follow up with students after class
• Debrief with a colleague

Can students deface or remove offensive fliers or posters in classrooms? In hallways and other public spaces?

If fliers are posted consistent with the requirements of the university’s speech policy, they are protected and should not be removed or defaced. If students object to a posted flier, they may respond with their own speech by posting their own fliers, so long as they also comply with the requirements of the speech policy.

Students should talk with faculty or the Office of the Dean of Students if they have concerns about fliers or posters displayed in classrooms.

Why isn’t the University of Utah enforcing Interim Policy 1-012 on the basis of discrimination against an individual’s gender identity and gender expression and removing anti-Trans fliers currently posted around campus?

As noted above, messages that may be considered hateful are still protected by the First Amendment.  In addition, Utah law currently states: “An institution may not sanction or discipline, as discriminatory harassment, student-on-student speech that does not constitute discriminatory harassment” [Utah Code 53b-27-402(2)(a)]. Utah Law further states that “Discriminatory harassment” means student-on-student speech that:

(a) is unwelcome;

(b) discriminates on the basis of a classification protected under federal or state law; and

(c)  is so severe, pervasive, and objectively offensive, and that so undermines and distracts from a student’s educational experience, that the student is effectively denied access to an institution’s resource or opportunity. [Utah Code 53b-27-402(1)]

Typically, the offensive speech must be targeted at an individual before the speech will cross the line into discriminatory harassment. The university cannot take action to discipline organizations or students for their offensive speech unless their actions are denying students access to the U’s resources or other opportunities. While some fliers on campus are offensive and often harmful, they have not sufficiently disrupted access to the institution’s resources, according to the Office of General Counsel’s interpretation of state law. All three of the circumstances above must be met for the university to intervene.

What can students, faculty and staff do to help protect themselves from being targeted by national organizations? 

The university recognizes that U employees and students often find themselves at the forefront of complex and sometimes controversial topics. The Academic Affairs Office offers advice and support on its Academic Freedom site for anyone on our campus who may be facing threats, questions or criticism in their field of study or line of work. A few highlights include:

• The university expects and urges scholars to keep interactions respectful and on topic, using facts, evidence, reason, and data. It is generally a best practice NOT to respond to angry, highly partisan, ad hominem, or personal attacks.
• A reminder that there is no such thing as a private conversation. Your exchanges (text, email, social media, etc.) may result in your words being broadcast on social media or other online outlets in ways you aren’t expecting.
• It’s important to distinguish between feedback that is critical of scholarship and communication that constitutes a threat, attack or targeted harassment. Threatening and harassing messages are often unsigned, signed with obviously fake or misleading names, or provide an email address but no specific identity.
• If you identify yourself on social outlets as U faculty or a staff member in a personal post, you should make clear that your views are your own that that you are not formally representing the university. You may want to include a disclaimer, something like this: The views expressed on this [blog, Website, etc.] are mine and do not necessarily reflect the views of the University of Utah.
• If you feel you are being harassed, stalked, etc. please call University of Utah Police at 801-585-2677.

What is the university’s position on institutional neutrality?

The university’s statement on institutional neutrality is contained within the Academic Freedom website: https://academic-affairs.utah.edu/academic-freedom/. Institutional neutrality is a commitment by our university leaders in their official capacity to refrain from taking public positions on political, social, or unsettled issues unless an issue directly affects the core mission, role, or pedagogical objectives of the university. This obligation does not apply to our faculty, staff, or student body who have the right to speak on matters of public concern on their own time and with their own resources. Administrative leaders at the University of Utah acknowledge their role to encourage and promote debates, not to settle them.

How will the university address violations of free speech?

If faculty, staff, or students engage in inappropriate behavior that violates free expression on campus and the law, the university will address the behavior in accordance with its general rules and policy guidelines. Consistent with the Utah Board of Higher Education’s neutrality resolution on freedom of expression, the university will not weigh in on the subject matter of the speech expressed but will publicly communicate to the university community the appropriate way to engage in public speech.