A Bill of Free Speech Rights and Responsibilities for the Swarthmore College Community

I present this statement as a set of debatable points. Responses are welcome. At this moment in the College’s history, when we are at a dangerous crossroads as a liberal arts institution, we need to attempt a clear, brief statement of principles defining both our free speech rights and our responsibilities to each other as members of the Swarthmore College community.  

I’ve drafted this after some reflection on the College’s history, including significant past crises, such as the sit-in during 1969 that pushed the College to hire Black professors, admit more Black students, and create both a Black Studies academic program and the Black Cultural Center. I am influenced by having served twice (during two different decades) on the College Judiciary Committee. I am also one of many faculty who signed a statement demanding that recent charges against student protesters be dropped. 

Perhaps if a consensus emerges that some or all of a revised version of this document is useful, it could be passed along to the appropriate committees that consider whether changes need to be made to official College documents, including the Student Code of Conduct and the Bylaws governing the Board of Managers’ responsibilities. If not, I still believe that trying to craft a statement like this one is valuable.  Maybe it will restart a community conversation that needs to happen. 

The statement below makes no pronouncement on related issues being debated at Swarthmore, including whether educational institutions should make collective statements about national or world events; or how the College should invest its money. But everyone should educate themselves about these issues by listening to a wide range of arguments, then decide where they stand. 

Since I’m a literary scholar and a historian, I conclude these introductory comments by urging everyone to do two things: 1) educate yourself about what is happening to teachers and students and schools and libraries in Palestine, Lebanon, and Israel; and 2) reread and discuss with others the Book of Exodus, including Exodus 19-40 on the covenant and what constitutes a violation of the covenant.  Exodus is canon for three major religions.

Thanks to those who offered advice on an earlier draft.

—Peter Schmidt, Professor of English Literature

Swarthmore College students, faculty, and staff have a right to protest or make other forms of public statements, individually or in groups, under the following guidelines. 

Community members have the right to go about their lives at Swarthmore without being harassed, threatened, discriminated against, or silenced. But with rights also come responsibilities. We need to articulate how rights and responsibilities should coexist at Swarthmore, at a time when, nation-wide and globally, free speech rights — including the right to protest — are being systematically narrowed, while at the same time networks of surveillance and punishment are having their powers amplified.

If community members want to protest a public event that others connected to Swarthmore College have organized, they have the right to do so. But they must not shout down or otherwise attempt to silence speakers invited by Swarthmore campus groups, nor speakers from the College community. (Or is the assertion just made something we should debate as a community?)  

Recommended alternatives include: talking back briefly, passing out protest flyers, staging walkouts or sit-ins with signs or other silent forms of protest, and/or holding counter-events (such as teach-ins and demonstrations) so that alternative points of view are expressed and discussed. 

We also need to have more conversations on campus among groups with opposing views, learn how to hear each other, find common ground if possible, and, if not, at least define more articulately than before why we cannot reach consensus. 

For instance, when is the line crossed between a peaceful disruption of the peace to make a point, versus harassment and threats?  What if someone shouts “kill all the ___” in someone’s face? What if a banner is unfurled on campus protesting a group: does the presence of its words harass an individual who identifies with that group? Further, is the best and only way to deal with these kinds of cases our on-campus judicial system, or the criminal courts?  What about other forms of community response to such incidents? For more on the last option, read further. 

 Incidents that need to be adjudicated on campus must follow time-tested College judiciary procedures. All sides in the dispute must receive counsel, must be able to have a supporter present throughout the hearing(s), and must be allowed relevant witnesses they designate to testify in their support. The hearings should be administered and decided the way Swarthmore judicial proceedings have successfully been run in the past, headed by a dean (or another appropriate College employee appointed by the President) and heard by a College Judiciary Committee panel of administrators, faculty, and students. If necessary, the CJC panel will determine appropriate punishment or the terms of restorative justice as a way of redressing what occurred. Faculty members on the CJC are appointed each year by the Committee on Faculty Procedures. Changes to the basic operating procedures of the CJC must not be made without broad community discussion and approval. 

Further responsibilities that go with exercising the right of free speech at Swarthmore College include but are not limited to the following:

·   Community members must not target individuals* with threatening actions or language, either in person or online. If they do, they may face charges. [*see the note at the end of this document regarding language in the current Student Code of Conduct that makes targeting or harassing a “protected group” a chargeable offense.]

·   Swarthmore community members must not shut down or disrupt activities in classes, public indoor events, private offices, private meetings, or other necessary business and community functions — including faculty meetings, committee meetings, and ceremonies like Collection, Baccalaureate, Commencement. Protests at other times and places are allowed. Regarding Board meetings, see below.

·   They must not block access to public or private spaces. A sit-in in a hallway or another public space, for instance, must allow non-protesters to pass by or through.

·   They must allow counter-statements or counter-protests to occur. Counter-protests must also follow the guidelines outlined here.

·   Vandalization of buildings, spaces, or other college property may result in disciplinary hearings and punishment for those convicted. Some of these situations perhaps should be resolved using restorative justice principles. That is, in the case of being convicted of vandalism, restorative justice could involve having to pay for repairs and/or to participate in the labor involved in doing restorative work. However, let’s be clear about what’s now happening on campus. The current Code of Conduct prohibits the “unauthorized entry into or presence within any College buildings or areas.”  What does that mean? Perhaps the language is purposely vague: it opens all kinds of student actions to prosecution, including the use of “bullhorns” and “musical instruments,” not just clear instances of physical property being damaged.

·   Our community needs to have a conversation about what restorative justice would involve in cases where someone is judged to have committed harassment or violence. The opposite kind of case is also important to consider, and it too is complicated. What should be done when someone has, without supporting evidence, unjustly accused another of harassing or assaulting them, or another violation of the Code of Conduct?

o  Note: “restorative justice” is defined as follows in the current Code of Conduct:

“infractions may be resolved through a variety of methods ranging from informal, remedial and/or restorative steps, such as community information and education, counseling, or mediation, and up to and including formal College action, which may include but is not limited to investigation, temporary suspension, and sanctions/outcomes up to and including suspension or expulsion.”

o   Workplace discrimination or harassment is a different matter. The College has procedures in place to handle such cases.

Further:

·   All public demonstrations must be time-limited, with an end-time negotiated by all the parties involved.

·   When students and/or other members of the College community request necessary permissions or permits, they should receive a decision about their request with reasonable promptness. If the request is denied, the reason(s) for the denial should be explained in some detail; it’s not enough just to announce a denial. In addition, why does most of the power reside in those granting permission? Should we create a board of community members that makes decisions about permits (or at least some kinds of permits), instead of the current system?

·   Any permit policies involving free speech issues must be reasonable and clearly explained. Permit policies should not become an ever-expanding universe of injunctions policing speech at the College. Faculty, students, and staff have a right to have a say regarding how such policies are defined and applied, plus a say in defining what is “reasonable” and should be allowed. See also the previous point.

·   If there are incidents involving Public Safety that community members find objectionable, a quick review of the incident(s), testimony, and other relevant information should occur and a resolution be made. The Public Safety Advisory Committee supervises Public Safety. How well is the current arrangement working? Is training adequate, from both the point of view of PubSafe officers and according to the Swarthmore community at large? Is further community testimony and discussion needed? Remember that Public Safety’s primary duty is to protect and serve.

·   The most important obligations of all for Swarthmore College students, staff, and faculty are these: 

o   We must care for each other, and express that care in action. Not giving a damn is not a form of caring.

o   If you witness someone being assaulted or harassed, ask the person(s) being attacked if they want help. If they do, intervene. Talk back to their harasser(s). Take other actions as needed to protect and de-escalate. Seek help, and report what happened. Be a witness in a hearing if that will help.

Swarthmore College as an institution also has obligations due to its Quaker tradition of shared governance. To mention just two:

1)   When protests over Swarthmore College policies involve more than four dozen people,* representatives from that group, if they so choose, must be allowed to address the Swarthmore College Board of Managers at least once during the Board’s next visit to campus. Further, the Board must engage in dialogue with protest representatives and others and decide on a reasonable time-line for a response (or responses, as described below). The Board retains the right to make its own determinations about how to respond, but they must respond, not remain silent. When it announces to the community its comments on the issue(s) in question, it must also a) explain its reasoning and b) allow for any dissenting Board members to speak. Further dialogue between the Board and the community should occur, if necessary. 

[*I cite “four dozen” as a number that would require Board action, but perhaps another number would be better? What I don’t think should be negotiable is the principle that when significant protests or differences of opinion occur on campus the Board needs to listen to all parties involved and respond in a timely way.] 

2)  The College must not make changes to its operating procedures and practices— including those defined in the Student Code of Conduct and the Faculty and Instructional Staff Handbook — without having those changes discussed and approved by the faculty, the Board, and other appropriate parties. The revisions added anonymously to the Student Code of Conduct in Summer 2024 were not minor changes.  Historically, the important documents named above have been occasionally revised and updated, but to my knowledge all changes to them have always — until 2024 — been accomplished through and approved by committees and then broad community participation.

Appendix:

Here is an assertion about “protected classes” (groups) in the Student Code of Conduct, followed by my commentary:

 The current Student Code of Conduct makes targeting or insulting “protected classes” a chargeable offense. (For more details, see the “Discrimination, including Harassment, Based on a Protected Class” section of the Code.) Further, the Code says that “When harassment of this nature is exhibited toward protected classes, the behavior may also be subject to additional policy violations and procedures.”

Comments: An institutional response “may” be appropriate, depending on the particulars of the incident. But instead of focusing solely on an institutional response (such as a CJC hearing), why not respond to hate-filled or threatening speech directed at a group or groups by having community members talk back, mock, and/or use other peaceful means of showing that such speech will not be ignored? Should every objectionable speech act really have to be responded to via a massive (and massively slow) legal process? To be clear, “talking back” to speech perceived as hateful must not incite violence or use threats. Responding to hate speech with counter-arguments and/or mockery at the time of the incident is a proven deterrent. So is protecting those attacked.

But remember paragraph #3 near the beginning of this document: “If community members want to protest a public event that others connected to Swarthmore College have organized, they have the right to do so. But they must not completely shout down or otherwise attempt to silence speakers invited by Swarthmore campus groups, nor speakers from the College community.” 

As noted earlier, the College has procedures in place for assessing allegations of workplace discrimination.