“It can create workplace harassment that is both illegal and damaging to morale.”
This article has thus far positioned the University, admittedly somewhat myopically, as principally a place of employment, not just for student employees but also for the faculty and staff that travel everyday to work within Middletown’s ivory tower. As a place of employment, it is of the utmost importance to address issues of harassment that can occur—and have indeed occurred in the past—as a result of chalking.
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e-2(a)(1)) asserts that it is “an unlawful employment practice for an employer…to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” (The list of protected categories has subsequently been expanded through later legislation.) In Meritor Savings Bank v. Vinson (1986), the Court further determined that Title VII is violated when a workplace is composed of “discriminatory intimidation, ridicule, and insult”—i.e. harassment—in a way that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.”
This means that the University may be financially liable to employee exposure to myriad forms of harassment. When exploring employer liability for coworker and non-employee harassment, the Court in Faragher v. City of Boca Raton (1998) repeatedly referenced 29 C.F.R. §1604.11, which deals with a “sexual harassment hostile environment” specifically. This legislation holds in (d) that “with respect to conduct between fellow employees, an employer is responsible for acts of sexual harassment in the workplace where the employer…knows or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action” and in (e) that “an employer may also be responsible for the acts of non-employees…where the employer knows or should have known of the conduct and fails to take immediate and appropriate corrective action.”
Thus, the University is responsible for protecting employees from obscene pornography, racial epithets, etc., regardless of where they originate, because, in failing to respond, it is condoning a hostile work environment. A “hostile” environment, the Court explains, can be ascertained through a “reasonable person” looking into the circumstances of the conduct, including “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Harris v. Forklift Systems, Inc. (1993).
In a final note: Title VII protections are “based on the cumulative effects of individual acts.” National R.R. Passenger Corp. v. Morgan (2002). Thus, one isolated action—one sexually explicit chalking, for example—is not at question, but rather the University’s systematic response.
It is without question an admirable goal for the University to maintain a safe and inclusive working environment, and more admirable still to desire to go above and beyond minimum legal requirements to achieve this goal. However, both objectives could still be fulfilled without a chalking proscription; equally legally protectable speech is able to coexist with workplace safety and inclusivity.
To begin, it has already been noted above that there are several categories of speech that are unprotected, including categories such as obscenity and hate speech that would create the hostile work environment that the University is legally obliged to prevent. Thus, allowing for even a broad protection of speech would not include the speech that is at issue under Title VII. The University must argue, then, that chalking—perhaps as anonymous speech—allows for such unprotected, harassing speech to proliferate so rampantly that the only way to stamp out such hate is to ban the medium altogether. This argument, however, appears not only to be empirically unquantifiable (how would one determine whether one form of speech is per se more harassing than another?) but also, as noted above with Talley, a potentially constitutionally pointless exercise, given that the case seems to suggest that the ability to use punishment as a tool for further prevention is not a sufficient justification to stamp out anonymous speech altogether.
Furthermore, the University’s current policy suggests that chalking that is obscene, discriminatory, etc. will receive more discipline. As noted above, currently a chalker would be brought up on violating CNAC §15; however, chalking that amounts to harassment would also implicate §2 “Harassment and Abuse”. Thus, there would still be recourse under CNAC to prosecute hate speech and obscenity if the moratorium was lifted, and chalking no longer violated §15. CNAC §2 would cover issues of harassment for nefarious chalkers who are caught.
But what about the (vast majority of) chalkings in which no culprit can be determined? Reading Talley together with Morgan and Faragher, the University is responsible under Title VII for how it systematically responds to harassing chalking.
In resident advisor training, student staff are taught that the first step in responding to an instance of hate speech is to cover the text and then call Public Safety so that it can be photographed for evidence and then removed. The privileged position of hiding the speech emphasizes the fact that removal of the speech from the public eye takes immediate precedent, according to University policy; secondary is seeking out responsibility and punishment. Removal of the speech and investigation into responsibility appear to fulfill Morgan’s requirement for employer action—it does not fall to the wayside simply because anonymity decreases the probability of an investigation being fruitful. We do not ban whiteboards from hallways because of the poorly-drawn penises or discriminatory remarks that could be written on them; we do not ban all writing in snow because of the hate speech that has resulted this year alone.
In this way, the argument that insufficient opportunities for punishment requires a wholesale proscription on a form of speech under Title VII does not appear valid, and the University will meet its legal obligation so long as its policy for dealing with any form of hate speech is applied with equal weight to chalking.
However, it is also important here that we do not conflate “legal” with “ethical”—again, we should commend the University for attempting to go above and beyond legal minimums. Indeed, even if the University has a swift response to all obscene and hate speech it finds, this does not account for the emotional ramifications on the few who will inevitably view it before it is removed. And to this we must be sympathetic. However, the danger of undesired speech comes with any medium of speaking, and we must also make sure that the University does not conflate its desire to shield faculty, staff, and students from such hate with its desire to discipline those responsible. An increase in the difficulty of disciplining those responsible as a result of chalk’s anonymity does not transfer to an increase in the difficulty of removing such speech. We must, as a community, condemn hateful speech when we see it, but—on both legal and ethical grounds—we also must not banish everyone into silence as a result of fear.
In the end, so long as the University polices chalking in the same way that it polices its bulletin boards, hallways, and banners, there is nothing to suggest that chalking would itself violate Title VII and thus create workplace harassment. As a result, the argument is insufficient to justify such a ban.
“It gives many visitors the impression that Wesleyan lacks high intellectual standards and contributes to the sense that the campus is unkempt.”
This is perhaps the most difficult pill to swallow as an institutional justification for proscribing chalking. However, it is also the justification listed in the Student Handbook for the chalking ban: the University states that it wishes to “protect freedom of expression while encouraging respect for University property and the appearance of the campus.” Given that the handbook provides only basic guidelines for other (oftentimes anonymous) speech such as posters and banners, the University, by banning chalking wholesale, is therefore suggesting that chalking is so drastically per se disrespectful and aesthetically displeasing that it can be proscribed at whim.
First, let us consider the appearance argument. To begin, sidewalks alongside public roads are considered city property, and therefore the chalking ban does not apply. Tour groups often use these sidewalks in their elliptical route and can therefore still be exposed to such “unkempt” scribblings despite the ban. It would be spurious at best to suggest that the University will be able to maintain a pristine appearance by enacting a ban on chalking given the public sidewalks that run like rivers through campus.
Further, it would be well within the University’s rights to enact time, place, and manner (TPM) restrictions on chalking. Renton v. Playtime Theatres (1986). For example, it can proscribe chalking on the sides of buildings or over informational content on pavement (such as handicapped parking symbols or painted text like “EMERGENCY LANE”). This would help control the “unkempt” appearance that would occur from chalking much more effectively while still allowing for protectable speech to survive. That is, unless the administration is to assume that students will chalk political messages across all campus without regard to legibility, piling one top of another and causing an incomprehensible pandemonium of colored calcite.
TPM restrictions on chalking would also provide a less restrictive means of dealing with concerns of respect. Chalk, unlike paint and marker, is a transient form of communication, and therefore any presumed disrespect in this argument seems to derive principally from the act of chalking rather than the content. While concerns of respect would be valid for chalking on sides of buildings or over informational content, it is much more difficult to suggest that all chalking is by its nature improperly disrespectful. Followed to its logical conclusion, would this not suggest that all forms of dissent—protest signs, petitions, chants—are similarly disrespectful? In terms of respect, what is the difference between a student holding a protest sign with “Michael Roth, what are you doing about global warming” and having those same words emblazoned with chalk? Unless we are ready to lambaste all forms of political dissent as proscribable disrespect, we must accept that concerns of respect result from the time, place, and manner of the chalking, and not chalking per se as a medium of communication.
There is also little argument that chalking could be disrespectful because it damages University property. Admittedly, conservation of property is a compelling interest that can, at times, limit speech. Clark v. Community for Creative Non-Violence (1984). This is especially true for private (as opposed to government) property. However, chalking does not amount to damage to property—it is an impermanent form of communication that can easily be removed. Let us even assume, for the sake of argument, that certain surfaces could be irreparably damaged by chalk; again, TPM restrictions would take care of the issue without creating an overbroad policy. Thus, there is no evidence to suggest that chalking is disrespectful by its very nature in a way that can allow for its control.
The gravest concern about this argument—both in terms of appearance and in terms of respect—is that it provides little possibility for students to have any control over the space in which they live. What seems to underscore this argument is the idea that the University exists as a showroom for prospective consumers of our educational product, and students should not be granted allowance to make the space in which they are forced to live for four years appear in any way a lived space. While aesthetic value may be a compelling interest in the foregrounds of the White House, Mahoney v. Doe (2011), it makes strikingly little sense in the context of the University.
Given the WestCo courtyard project and the ability to hang fliers on billboards and kiosks throughout campus under only basic civility guidelines, the chalking ban as aesthetic preservation appears to be drastically inconsistent with current University policy. It would therefore be disturbingly upsetting for the University to take seriously the argument that it must proscribe chalking in order to preserve the campus. The aesthetic “beauty” of a sterile campus should not be considered a sufficiently compelling interest for the ban given the plethora of less restrictive options to accomplish this goal, nor should we accept the conflation of squashing dissent with upholding standards of respect.