UNC System Adopts "Hate-Crime" Policy

Special Report - March 8, 2010
A new system-wide student code of conduct for the University of North Carolina could infringe on students’ First Amendment rights by broadly prohibiting threats, coercion, harassment, and intimidation with special mention of characteristics like “sexual orientation” and “gender identity.” The policy has been in the works for a year, and sought to address the commission of hate crimes on public university campuses in the state. All 16 campuses in the UNC system, as well as the North Carolina School of Science and Mathematics and the UNC School of the Arts, are required to have a code of conduct that at the least includes those provisions set forth in the policy passed by the Board of Governors on February 12.

Generally, hate crimes, as defined by federal and state laws, are prohibited under the new policy. Students may not “threaten, coerce, harass or intimidate another person or identifiable group of persons” on campus or at University-sponsored event. “Unlawful harassment” which leads to a “hostile environment,” defined as “behavior that creates a hostile environment because it is: directed toward a particular person or persons, based upon the person’s race, color, religion, national origin, gender, sexual orientation, gender identity, creed, disability or veteran status,” is prohibited. This also includes behavior that is “unwelcome, severe or pervasive, objectively offensive and so unreasonably interferes with the target person’s employment, academic pursuits, or participation in university-sponsored activities as to effectively deny equal access to the university’s resources and opportunities.”

The policy asserts in its purpose, “The Board of Governors is committed to preserving and protecting these [First Amendment] freedoms, while recognizing that certain conduct, which intentionally targets a person or identifiable group of persons ... may interfere with the university’s core mission of advancing knowledge and understanding.” However, it goes on to require that each code of student conduct include a statement that “The University has the right under appropriate circumstances to regulate the time, place, and manner of exercising these and other constitutionally protected rights.”

The ACLU has raised concerns about some terms in the policy that are left undefined, including “threat” and “intimidation.” The inclusion of “sexual orientation” and “gender identity” is significant in light of the General Assembly’s passage last year of the School Violence Prevention Act, which incorporated those terms into state law for the first time. Congress also expanded hate crimes legislation in October 2009 to include “sexual orientation” and “gender identity” by attaching the provision to a defense appropriations measure.

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