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MEMORANDUM
 
To:              Gary Leedes, Columbia State University Counsel
From:              Applicant
Re:               Legislation Creating a Civil Action for Offensive Speech
 
1. Does the proposed language meet the goals of the University?
 
The goal of Columbia State University (CSU) in proposing this legislation is to enable students who are victimized by harassment and discrimination based on their race, religion and national origin to be empowered with a tool by which they can remedy the injury they have suffered.  The University further hopes that the existence of this cause of action will act as a deterrence against harassment of foreign students.
 
The proposed legislation which you have drafted is adequate to meet these goals.  The proposal empowers victims of harassment and intimidation on campus to sue the tortfeasor in civil court and recover money damages for the harm they have suffered.  While money damages may not repair the psychological damage which the students have suffered, under the Constitutional constraints which we are faced with, a civil action is the only remedy we can give to the students.  Additionally, once the perpetrators of the harassment learn that they can be sued in civil court for the damage they inflict, we hope that they will be dissuaded from engaging in such conduct, much the same way that a person is dissuaded from graffiti by knowing they may be held civilly liable for their conduct.
 
As for the burden on the victimized students in pursuing a civil claim, Columbia is not without attorneys who will represent the students on a contingency basis, and enterprising students may even file a claim in small claim’s court.
 
2. Is the proposed language consistent with Constitutional requirements?
 
As you are aware, Columbia State University passed an anti-discrimination policy which was recently ruled unconstitutional by the federal courts in Doe v. Columbia State University.  In that decision, the court set forth the Constitutional requirements for a statute such as the one we propose.
 
The court held that while the First Amendment does protect a wide range of speech, there are forms of speech which are not protected.  This unprotected speech is what our proposed legislation is targeted at.
 
The Doe court found that civil actions for unprotected speech are permissible, as in the case of discrimination or harassment in employment or for a hostile work environment.  The legislation we propose is akin to this already existing field of law, in that it in effect creates a civil action for a hostile educational environment.
 
It is also permissible to regulate speech which by its very utterance inflicts injury (Chaplinsky), and credible threats of violence and property damage made with the specific intent to harass or intimidate.  It is also possible, in some circumstances, to regulate speech which is vulgar, offensive or shocking (Bethel), or which is tantamount to group libel (Beauharnais).  The court reminded us, however, that we may not regulate speech merely because we disagree with the ideas contained in the speech or because we find it offensive, even as to a large number of people (Doe at 4).  The regulation must also not be overbroad (regulating protected speech), or vague (unlimited in scope) (Chaplinsky). 
 
With these guidelines in mind, the proposed legislation will likely be subject to constitutional attack in its present form. 
 
First, the draft targets speech that is “reasonably likely to harass and intimidate.”  This phrase would be subject to attack based on overbreath, because it most likely encompasses protected language.  Mere insults are reasonably likely to harass a person, but the court has held in Chaplinsky that such speech is protected.  However, the court held that speech that “by its very utterance inflicts injury” would not be protected. 
 
Second, the draft targets speech referring to the other’s “status or heritage”.  This is a viewpoint-based restriction which would be held unconstitutional as being overbroad under Chaplinsky.  Reference to the other’s “status” is also vague, as it is not clear even to me what types of status would be encompassed.
 
3. Redraft of proposed language
 
    1.  A person who engages in a pattern of communication addressed to another
    2.  which intentionally or recklessly
    3.  causes the recipient severe emotional or physical distress
    4.  is subject to civil liability for the injuries received.
 
In line 1, no changes have been made.  In line 2, I have changed the required intent from “reasonably likely to harass and intimidate” to “which intentionally or recklessly.”  The prior language was vague as to what conduct would be reasonably likely to harass and intimidate a person.  The new language requires a more strict level of intent on the harasser.  I also deleted the “reference to the other’s status or heritage” language, which is viewpoint-based and therefore under the Doe decision unconstitutionally overbroad.  The new language also protects speech when the intent of the speaker is innocent – this would include conduct which society at large does not condone, such as references to race in common parlance which some members of society may find offensive, but which are not intended as such.
 
Lines 3 and 4 are substantially the same as the draft.  Line 3 limits the cause of action to speech which causes “severe emotional or physical distress” and …
Dear Representative Beaty,
 
Columbia State University is one of many universities experiencing a dramatic increase in the incidence of demonstrated hatred towards foreign students on the basis of their race, religion or nationality.  As the Chairperson of the House Judiciary Committee, we are writing to encourage you to pass legislation which would empower the victims of these attacks to have an effective remedy against their aggressors for the …
 
1. The legislative process is appropriate to stem this conduct
 
The problem which Columbia State University is faced with is extremely serious, and we presently lack an effective tool to curtail the problem.  Therefore, we turn to the legislature to enact a law to protect our students from the serious harm they suffer.  As an alum, you know that Columbia State University is ranked in the first-tier.  Our university has a world-renowned cross-disciplinary international studies program which attracts students from around the world.  In fact, a large portion of our students come from foreign countries: 23% of our 30,000 students are from abroad.  This is not uncommon in America, as declining enrollment by American-born students has increased our reliance on foreign students to fill our classroom seats.
 
At the same time that more foreign students attend our universities, more are subject to racial harassment resulting in serious physical and emotional injuries.  Last year, two out of every five foreign students were subjected to such harassment, according to a survey published in the National Educator
 
The rise in incidents of discrimination and harassment against foreign students is having an impact on our impeccable reputation.  Many of our foreign students return to their homeland, and spread the word that Columbia State University is an unfriendly and The February 1, 1992 edition of National Educator cites harassment on campus as being a factor considered by foreign students when they choose a college.  This reputation has resulted in applications from abroad declining recently, and an exodus of foreign students transferring to other schools.
 
Additionally, we are in grave danger of loosing foundation grants from foreign governments, corporations, and alumni if this trend of abuse is not curtailed.  National Educator reports that major foreign financial gifts have begun to drop off, and universities are experiencing a “brain drain” caused by 110 foreign professors leaving U.S. universities in the last two years.  Columbia State University alone saw ten of its foreign professors leave.
 
The most recent data that we have available shows that in the last 6 months, the number of incidents of discrimination against foreign students has more than doubled.  While incidents based on other factors such as race, gender and age have also increased, their increase has been far less dramatic than that against foreign students.
 
The conduct which Columbia State University students have experienced, and which this proposed legislation is targeted against, is not merely “innocent” ethnic jokes.  University students have recently experienced being spat upon, receiving threats from the KKK, arson attacks, and repeated taunting which were so severe that the students had emotional and physical injuries which had to be treated at the University counseling center and infirmary.
 
These attacks are not without serious consequences:  Long term psychological damage has been verified by social scientists, according to a report published in the Columbia Daily Record (January 5, 1992). 
 
The judiciary is unable to provide the victims of these injuries with any recourse, because there are no laws on the books which create a civil action for this abusive conduct.  Therefore, we find it necessary to appeal to the legislature to enact a law protecting our students from the emotional and physical harassment they are suffering.
 
2. A civil action is needed for racist speech
 
The existing tort of intentional infliction of emotional distress is simply inadequate to provide university students with a remedy against the racial harassment they are currently suffering. Wolski v. Zayre held that even race-based shocking insults and threats targeted at a customer by a proprietor did not rise to the level of extreme and outrageous conduct to meet the requirements of this tort, and cited several other cases where shocking insults, threats and harassment were not sufficient to give rise to a cause of action for emotional distress.  The court in Gaiters v. Lynn agreed with this analysis in a case involving a black man who was humiliated in public by his employer, finding that the conduct simply did not give rise to the cause of action complained of. 
 
The courts have cited the need for a “toughening of the mental hide” and the necessity of plaintiffs to be “hardened to a certain amount of rough language”.  However, the dissent cited several court cases decided in Columbia which show the evolving trend of the civil rights movement, which has resulted in a widening of the types of claims encompassed by modern tort law, and which has occasionally encompassed harassment based on race and national origin. 
 
Indeed, we suspect that many of the earlier decisions denying recovery based on extreme forms of racial harassment have been influenced by racism and prejudice.  These courts have preferred to place the burden of “toughening the mental mind” on the minority plaintiffs, while allowing the majority defendants unlimited reign in their harassment.
 
While this may not be objectionable in the general public – and indeed one can expect the general public to form a “tough mind,” young university students cannot be treated with the same expectations.  Students attend universities to enhance their education and broaden their horizons, in a semi-protected environment.
 
One of the concerns asserted by opponents of this proposed legislation is that of free speech.  They cite the importance of nurturing important ideas, and the marketplace of free speech.  They promote education, not regulation.  But all of these noble ideas have failed to solve the problem being experienced by Columbia State University.  The University has spent more than $200,000 in the last 18 months on education programs aimed at curbing harassment, and as indicated by the statistics cited above, such programs have failed to curb the exponential growth of incidents harassment.  Further, we find it patently unfair that the foreign and minority students are forced to bear the overwhelming burden imposed by the “marketplace of ideas.” 
 
Our proposed legislation is attached to this letter.  The legislation applies not only to university students, but to everyone.  Yet at the same time, the language is narrow enough that only plaintiffs who are able to prove that the defendant intended to cause the plaintiff emotional or physical harm is actionable, and even once that burden of proof is met, only action which is “severe” in nature will be redressable.  This language is intended to not create a cause of action for ethnic references in every-day language which are not intended to cause harm, and for ethnic jokes which, while offensive to some, are do not result in the server harm which our students are currently suffering.

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