AGO 1996-1.

• Case Date: January 12, 1996
• Court: Kansas

Kansas Attorney General Opinions 1996. AGO 1996-1. January 12, 1996 ATTORNEY GENERAL OPINION No. 96-1Ted D. Ayres, General CounselKansas Board of Regents 700 S.W. HarrisonSuite 1410 Topeka, Kansas 66609-3760Re: Amendments to the Constitution of the United States--Amendment I-Freedom of Religion, Speech and Press--Policies of the Regents Institutions Regulating Racial and Sexual Discrimination and Harassment Synopsis: Government imposed content-based restrictions on speech are generally impermissible under the first amendment. However, a carefully crafted racial and sexual discrimination and harassment policy that is directed at conduct violative of title VI, title VII or title IX may indirectly regulate speech that is "swept up incidentally within" the policy's reach. Cited herein: 20 U.S.C.A. § 1681; 42 U.S.C.A. §§ 2000d, 2000e; 29 C.F.R. § 1604.11.* * * Dear Mr. Ayres: As general counsel and director of governmental relations for the Kansas board of regents (the board) you request our opinion on the constitutionality of the racial and sexual harassment policies of the regents institutions. The board has directed "[e]ach Regents institution [to] develop and maintain specific policies which seek to: (i) identify prohibited conduct in [the areas of racial and sexual harassment]; (ii) educate campus constituencies with regard to these negative behaviors; (iii) eliminate such behaviors; and (iv) set forth the manner in which such behaviors or conduct are to be addressed." Policy statement of the Kansas board of regents, Board Policy Manual, item 21 at page 10G. The focus of your inquiry is whether the policies violate the United States constitution's first amendment guarantee of free speech which is applicable to the states by incorporation through the fourteenth amendment due process clause. Fiske v. Kansas, 274 U.S. 380, 71 L.Ed. 1108, 47 S.Ct. 655 (1927). We will treat the racial and sexual harassment policies separately due to their slightly different characteristics. I. Racial Harassment Policies You have provided the racial harassment policies from Pittsburg state university (PSU), the university of Kansas (KU), the university of Kansas medical center (KUMC), Kansas state university (KSU), Emporia state university (ESU), Fort Hays state university (FHSU) , and Wichita state university (WSU). After reviewing these policies, we are of the opinion that they do indeed contain first amendment infirmities, but that they can easily be amended so that they would withstand a challenge on this basis. We begin our examination using the KU racial harassment policy as an example. The definition of racial and ethnic harassment contained in both the KU student handbook (at 27-28) and the KU equal opportunity and affirmative action policies (at 4) is as follows: "1. Behavior or conduct addressed directly to an individual(s) and that threatens violence or property damage, or incites imminent lawless action, and that is made with the specific intent to harass or intimidate the victim because of race, religion, ethnicity or national origin; or "2. 'Fighting words,' such as racial and ethnic epithets, slurs, and insults, directed at an individual(s) with intent to inflict harm or injury or that would reasonably tend to incite an immediate breach of the peace, or "3. Slander, libel, or obscene speech that advocates racial, ethnic, or religious discrimination, hatred, or persecution." A. Fighting Words University of Kansas Section 2 of the above-quoted policy regulates "fighting words." Traditional fighting words doctrine has allowed regulation of speech which is "directed to the person of the hearer," Cohen v. California, 403 U.S. 15, 20, 29 L.Ed.2d 284, 291, 91 S.Ct. 1780 (1971), Cantwell v. Connecticut, 310 U.S. 296, 309, 84 L.Ed. 1213, 1221, 60 S.Ct. 900 (1940), and which is likely "by [its] very utterance [t]o inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 86 L.Ed. 1031, 1035, 62 S.Ct. 766 (1942). The KU policy is a clear attempt to embody the traditional doctrine. The United States Supreme Court has, however, held that the long-standing presumption, that content-based regulations of speech are invalid, applies with equal force to fighting words even though they are unprotected speech. R.A.V. v. St. Paul, 505 U.S. 377, 120 L.Ed.2d 305, 317, 112 S.Ct. 2538 (1992). "The rationale of the general prohibition . . . is that content discrimination 'raises the specter that the Government may effectively drive certain ideas or viewpoints from the marketplace.'" R.A.V., 120 L.Ed.2d. at 320 citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 116 L.Ed.2d 476, 487, 112 S.Ct. 501 (1991). Because the KU policy specifies "racial and ethnic epithets, slurs, and insults" as the type of speech covered by its fighting words ban, it is a content-based regulation and impermissible under R.A.V. This is true even though the language may be argued to be merely exemplary rather than part of the regulation itself. See Doe v. University of Mich., 721 F.Supp. 852 (E.D. Mich. 1989). (court relied upon an interpretive guide issued by the university along with its policy on discrimination and discriminatory harassment to find that the policy itself reached constitutionally protected speech). The Court in R.A.V. did enumerate certain exceptions to the general prohibition against content-based regulations, i.e. instances in which the threat of government control of ideas is not present. A content-based regulation may be permissible if the regulation "consists entirely of the very reason the entire class of speech at issue is proscribable," 120 L.Ed.2d. at 320, if the regulation is aimed only at the "'secondary effects' of the speech, so that the regulation is justified without reference to the content of the . . . speech," 120 L.Ed.2d at 321, or if the regulation is for any other reason the sort "that does not threaten censorship of ideas." 120 L.Ed.2d at 324. Additionally, a regulation may survive constitutional challenge if it is narrowly tailored and "necessary to serve the asserted [compelling] state interest." 120 L.Ed.2d at 326. The Court found, however, that the city ordinance at issue in R.A.V. did not fall within any of the exceptions and held the ordinance against fighting words which "one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender," 120 L.Ed.2d at 315, to be facially unconstitutional. [Although the regulation in R.A.V. was not as clearly directed at fighting words as the KU regulation, its language had been previously interpreted by the Minnesota supreme court to reach only fighting words and the United States Supreme Court deferred to this interpretation. 120 L.Ed.2d at 316.] We reach a similar conclusion with regard to the KU fighting words ban. The policy does not focus on a particular category of fighting words as more likely, because of the mode of speech, to incite violence than other categories of fighting words, but rather focuses on the content, i.e. expression of views on a disfavored subject. See R.A.V., 120 L.Ed.2d at 323. As in R.A.V., the KU policy is not aimed at secondary effects within the meaning of Renton v. Playtime Theaters, Inc., 475 U.S. 41, 89 L.Ed.2d 29, 106 S.Ct. 925 (1986). "Listener's reactions to speech are not the type of 'secondary effects' we referred to in Renton." Boos v. Barry, 485 U.S. 312, 321, 99 L.Ed.2d 333, 108 S.Ct. 1157 (1988). "The emotive impact of speech on its audience is not a 'secondary effect.'" Ibid. It may be argued that the intent of the policy is not to affect free expression, but rather to address racial discrimination and harassment in the university as a work place under title VII, 42 U.S.C.A. § 2000e, and as an entity providing federally funded educational benefits under Title VI of the civil rights of 1964, 42 U.S.C.A. § 2000d. The majority opinion in R.A.V. suggested that fighting words that may produce a violation of title VII (and presumably title VI as well) would not be protected. This statement, however, was premised on the fact that title VII (and title VI) do not target speech on the basis of its expressive content. By contrast, the KU fighting words policy is clearly directed at speech rather than conduct and does not define this form of harassment narrowly enough to be viewed as "swept up incidentally within the reach of a statute directed at conduct. . . ." 120 L.Ed.2d at 322. This is true even though the policy may be part of an attempt to comply with title VII and title VI. [The footnotes to the office for civil rights (OCR) investigative guidance on racial incidents and harassment against students, 59 Fed.Reg. 47, 11448 and 11450 (1994), indicate that it is directed at conduct rather than speech and that the "OCR cannot endorse or prescribe speech or conduct codes or other campus policies to the extent that they violate the First Amendment. . . ."] See discussion below, pp. 12, 13, for policy language that would be a permissible attempt to meet title VI and title VII obligations. Finally, the purpose for the ordinance in RAV was identical to the university's expressed purpose for its policy. The Supreme Court found this purpose inadequately compelling to except the ordinance from the general prohibition against content-based regulations. In R.A.V., the city argued...