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University of Pennsylvania maintained a stellar free speech rating for 13 years. It just lost it.

Hasn’t responded to warning letter for more than nine months

All the way back in 2006, the Foundation for Individual Rights in Education published its first report on speech codes maintained by colleges and universities in the U.S.

Eight schools earned the group’s highest rating for written policies that protect free speech, known as a “green light.” The University of Pennsylvania was one of them.

More than 12 years later, FIRE noticed a couple Penn policies that ran headlong into its green-light rating. Both concern sexual harassment.

It sent the private university a letter Jan. 31 calling attention to the two policies and offering the civil liberties group’s help revising them so Penn could keep its stellar rating. FIRE held back on revising Penn’s rating until Sept. 30, the “final reporting period for our annual speech code report, due out in December,” Azhar Majeed, vice president of policy reform, told The College Fix Monday.

FIRE never heard back, he said, so it dropped Penn one tier to a “yellow light” rating as of Oct. 4. Majeed said it was rare for a green-light school to lose that rating, “typically not even one every year.”

The Fix noticed the newly dropped rating when reviewing the school’s reported response to criticism of its treatment of law professor Amy Wax, a campus lightning rod owing to her statements about the academic performance of black students and views on immigration.

Majeed provided a copy of the letter FIRE sent to Penn, which praised the university’s track record:

For several years, Penn has been one of the relatively few universities in the country to earn a green light rating, due to the fact that it does not maintain any speech codes prohibiting or threatening expression entitled to First Amendment protection. (While Penn is, of course, a private institution not legally bound by the First Amendment, it commits itself to freedom of expression in official policy […])

But FIRE “recently discovered” the two sexual harassment policies, which “restrict protected speech” in violation of Penn’s written commitments and “promises to students and faculty,” the letter continued.

FIRE currently rates only 45 colleges and universities in the entire country as green light schools, and we would love to be able to keep Penn on this elite list of institutions that uphold and protect free speech on campus,” it reads.

Civil liberties group asks University of Pennsylvania to revise speech-chilling sexual harassment policies by The College Fix on Scribd

MORE: Penn Law hides facts about black student performance after punishing Wax

The Fix has asked Penn media relations to confirm that it received FIRE’s letter nine months ago, and if it did, why it hasn’t responded.

The two policies are found in the “Guide to the University of Pennsylvania Sexual Harassment Policy,” maintained by the Office of Affirmative Action and Equal Opportunity Programs, and the Pennbook, a collection of student life policies. The first has no listed effective date, while the second is dated July 1 – five months after FIRE’s letter to Penn.

The first defines sexual harassment as “unwelcome sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature” that may only have the “effect of unreasonably interfering with” a person’s work or academic performance.

It includes both verbal and “non-verbal behaviors and gestures,” with examples including “risqué jokes or kidding about sex or gender-specific traits” and asking someone on a date more than once. “Sexual looks and lewd gestures” may also qualify, as does “unwelcome flirting.” (How you can tell flirting is “unwelcome” without, well, flirting, is left unexplained.)

If someone sees a “sexually suggestive” calendar in your room or office – perhaps like this one (below) – that could also be ruled sexual harassment.

The portion of the Pennbook policy highlighted by FIRE is less prescriptive, making clear to students that the “totality of the circumstances surrounding the conduct” will be reviewed to determine whether it’s sexual harassment.

As a baseline, sexual harassment is defined as “any unwanted conduct that is based on an individual’s sex, sexual orientation, gender identity, or gender expression.” From there, it must include a “stated or implicit threat” to a person’s academic or employment status, have the effect of interfering with a person’s performance, or creating an “intimidating or offensive” environment.

Presumably, a male student refusing to tutor a female student unless she goes on a date with him would be covered.

It’s something of a surprise that Penn dropped a rating because of sexual harassment policies, rather than its response to student and faculty outrage against Wax, the conservative law professor, going back more than two years. (FIRE only evaluates a university’s written policies, not actions, when devising its rating.)

Wax was banned from teaching mandatory first-year courses after her comments about the middling academic performance of black students, which Dean Red Ruger called “false.” As with its alleged silence in response to FIRE, Penn Law has not responded to Fix queries about black student performance for 19 months and counting.

Ruger called her reported immigration views, expressed at a conservative conference this summer, “repugnant to the core values and institutional practices of both Penn Law and the University of Pennsylvania.” He said that at best, her remarks “espouse a bigoted theory of white cultural and ethnic supremacy.”

While Wax floated the idea of suing the university for defamation for claiming she lied about black student performance, she has not returned to the theme even as students – including the student government – ramp up their monthslong campaign to get her tenured stripped and Wax fired.

She defended her arguments about immigration and “cultural compatibility” at a Princeton event last month with Keith Whittington, the Princeton professor and author of “Speak Freely,” which was required summer reading for incoming Princeton freshmen a year ago.

The turnout for her event was “a little more than a dozen,” while a counter-event by the same host, the Whig-Cliosophic Society, drew more than 80 reservations and thus was booked for the society’s more prestigious room, The Daily Princetonian reported.

MORE: Penn student government demands Wax’s firing

IMAGES: DenisProduction.com/Shutterstock, Salt Lake Tribune screenshot

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About the Author
Associate Editor
Greg spent several years as a technology policy reporter and editor for Warren Communications News in Washington, D.C., and guest host on C-SPAN’s “The Communicators.” He co-founded the alternative newspaper PUNCH and served as a reporter, editor and columnist for The Falcon at Seattle Pacific University.

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