Home > Medical School, Medical/Health Commentary, Miscellany > “I’m a medical student. Mine is a hostile environment.”

“I’m a medical student. Mine is a hostile environment.”

The term “hostile environment” usually comes up in the context of workplace and other harassment law.  Generally, speech or conduct that is “severe” or “pervasive” enough to create a “hostile working/educational/public accommodation environment” can be deemed harassment and/or discrimination for the purposes of Title VII of the Civil Rights Act.  It imposes liability not necessarily just on the alleged harasser, but also on the employer/school/public accommodation that is involved, providing the latter entities with a strong incentive to clamp down on harassing behaviour among their employees and students.

Eugene Volokh, of Volokh Conspiracy fame, dedicates part of his website at UCLA to the free speech implications of harassment law, particularly the provisions that punish the creation of a hostile environment.  There’s a lot there to read, but the scope of what the law has been held to proscribe is breathtaking.  I’ve excerpted some examples below.

At the University of Nebraska at Lincoln, a harassment complaint was filed against a graduate student who had on his desk a 5″ x 7″ photograph of his wife in a bikini.  The employer ordered that the photo be removed. 97 And of course this is only to be expected:  When the law tries to root out “pornography,” especially using a definition as vague as “speech severe or pervasive enough to create a hostile environment for a reasonable person based on sex,” attacks on legitimate art are sure to follow. 98 (source)

[…]

Harassment law may also punish accurate statements about coworkers, such as the fact that a coworker parole officer had been a prostitute.  Nash v. New York State Executive Department held that such speech could by itself create a hostile, abusive, or offensive environment; 54 and of course as a factual matter this makes sense:  When your coworkers, who are law enforcement professionals like you, correctly tell each other that you had committed crimes that many think are pretty reprehensible, of course this will create a chilly environment for you.  (source)

Volokh’s website focuses on the constitutional issues raised by harassment law, particularly the fact that it amounts to state action coercing employers into restricting employees’ speech that would otherwise be protected by the First Amendment.  In his mind, this coercive state action is unconstitutional.  However, there is no dispute that private employers and associations may freely impose their own restrictions on speech.[1] The Constitution protects lots of speech that I and many others find to be vile, offensive, non-workplace-friendly, disagreeable, wrong, etc.; employers can rightly decide that they will not tolerate this at the workplace, and implement policies that proscribe that which the First Amendment would protect from government prohibition.  For Volokh, it’s the state coercion that poses a constitutional issue.

With the start of medical school just around the corner, I’m worried about hostile environments.  Just not the ones that workplace harassment law has in mind…  I’m worried about finding an environment hostile to free speech.

Workplace harassment law is already being extended by analogy to restrict speech by university students.  The new batch of university speech codes is being copied from harassment law, and their defenders are explicitly using workplace harassment law as an analogy.  The U.S. Department of Education Office for Civil Rights has explicitly taken the view that the First Amendment may be trumped by civil rights laws, consciously citing workplace harassment law as a precedent. (source)

The Foundation for Individual Rights in Education uses its resources to promote, among other things, student and faculty free speech in public and private universities.  Frequent targets of their ire are harassment regulations and “speech codes” that are so broad in scope and vague in application as to have a chilling effect on student speech.  Their “Issue Page” for free speech is full of cases where students and faculty members have faced sanctions for expressing views on political subjects (such as illegal immigration and gun control, to name two) that are well within the mainstream of American political dialogue outside the university setting.

This seems to be part of a larger trend in society in which a “right” to be free from offense or hurt feelings is being recognized and/or championed in all sorts of arenas.  Scott Greenfield takes on the subject of laws against workplace bullying and criticizes this trend.  Recently, the University of Illinois fired a Catholic professor for stating, during a class discussion of the Church’s ban on gay sex, that he agreed with that position, on the grounds that it constituted ‘hate speech.’  Relatedly, an attempt to mandate orthodoxy of political opinion has come from the American Bar Association, which accredits law schools.

Why do I care about all of this?  As I’ve indicated earlier, my political leanings are likely to place me in the minority at Sorta Urban Medical School (SUMS), and some of my favoured policy solutions, both health-related and otherwise, are likely to be unpopular.

Surely I’m being paranoid by being worried by all this “hostile environment” stuff, right?  That’s quite possible.  But consider the following propositions:

  • SUMS should/should not provide or teach abortions.  Abortion is/is not immoral and wrong.
  • SUMS should/should not teach treatment modalities such as acupunture or Reikki that are arguably based in “Eastern” religious traditions.
  • Medical care is/is not a human right.
  • Diversity is/is not an appropriate goal for a medical institution such as SUMS to pursue for its own sake, and the affirmative action policy as written is/is not a good way of doing so.
  • SUMS should/should not punish students for expressions of political opinions that offend other students.

Regardless of your agreement with any of these propositions, you must acknowledge that support for any of them is well within the political mainstream (though there are always extremists on both sides who will get carried away).

Now consider these statements in light of the legal and educational setting examples given by Volokh and FIRE.  If there is a speech code/harassment policy modeled after the law Volokh describes, and bringing with it overtones of a “right” to be free from hurt feelings, can you say with appropriate certainty that taking any of these positions would not be covered by such a policy?  I highly doubt it.  If someone were to be offended by someone else expressing one of these positions, it would be very easy to seek sanctions.

SUMS has such a policy.  Its terminology indicates that it’s inspired by the state and federal laws that Volokh singles out for constitutional scrutiny.  It contains ample language that would seem to outlaw any sort of statement that caused any sort of offense to another member of the school.  It is, in other words, broad in scope.  While I don’t consider myself a bigot, and while I have no desire to go around saying hurtful things for the sake of being hurtful, I can say truthfully that this policy will chill my airing of political and policy opinions at SUMS.  In fact, it has already done so.

The policy is also vague, as are many similar sets of regulations.  A few of the medical schools I visited made a point of bragging to us admitted students about their “flexibility,” the way in which many of their rules were just “guidelines,” and the way in which the administration would work with students to make adjustments and workarounds as necessary.  While a commitment to flexibility is admirable when used for the benefit of students’ education, I would imagine that it leads administrators at such schools to think of some of their obligations to students as similarly flexible in disciplinary cases, harassment cases, etc.

SUMS is such a “flexible” school.  The vagueness of its harassment policy are compounded by the lack of written free speech or academic freedom protections and the fact that students are afforded relatively weak due process safeguards in disciplinary cases that can be initiated by even one administrator.  While I have no reason to think that the school would use this “flexibility” against me as readily as it would “for” me, the vagueness of the harassment policy requires a significant leap of faith.  I can truthfully say that the vagueness of this policy, combined with the wide-ranging discretion given to those who would apply it, will chill my airing of political and policy opinions at SUMS.  In fact, it has already done so.

The question of free speech in medical school is mirrored for practicing physicians by the issues of “professionalism” and “disruptiveness.”  Last month, The Happy Hospitalist posted and discussed his hospital’s disruptiveness policy, and particularly its broad prohibition of “criticism.”  The WSJ Health Blog wrote that “condescension” is considered a disruptive behaviour by some advocacy groups.

There is no doubt that some interpersonal interactions don’t go as smoothly as would be ideal.  Sometimes, this can affect patient care, and a hospital or other medical employer clearly should be concerned by it.  That should not be at issue.  Some employees can make life downright miserable for their coworkers in ways that serve no redeeming function.  There should be no issue there either.  However, private employers, even hospitals, may choose to forbid any sort of speech — even legitimate “criticism” — without legal impediments.  That it is their right nevertheless does not make it right.

In his comment at a discussion of physician certification, GruntDoc noted that “for the public” has become the medical field’s answer to the rallying cry “for the children.”  There is a real tradeoff between advocating for free speech in the medical arena and reducing speech that is legitimately– dare I say it? — disruptive to patient care.  Clearly, standards of “professionalism” should be construed to protect patients.  The danger is that this standard, like Title VII anti-discrimination law as described earlier, will be allowed to creep beyond its original purpose.

Looking at SUMS once more, I find countless references to “professionalism” and “unprofessional” conduct in the policies that have been made available to us so far.  Never defined in one place, the expectation of “professionalism” covers a variety of transgressions, from unexcused absence from class to having the temerity to follow the established written procedure to appeal a grade(!).  The notion of “professionalism” is pervasive, yet ill-defined.  While I agree that some of the specific behaviours cited as being unprofessional are in fact unprofessional, there are no clear written limits on what the concept can be used to punish…

Which brings us back to the airing of political and other opinions.

The questions of free speech, harassment, and professionalism standards in medical school are similar to those raised in the context of the workplace.  The difference is that institutions of higher education should ostensibly be places that promote free inquiry, open debate, and rigorous examination of ideas.  While there may be a  moral/practical case for restricting speech in the medical workplace more readily than in other workplaces, it’s not clear to me that there is any such case for such “extra” restrictions in medical schools relative to other universities.  Furthermore, while speech is rarely restricted explicitly, broad and vague notions of “harassment” and “professionalism” have the same effect, even on speech that arguably should be encouraged in a university environment.

Will I find the “hostile environment” I worry about when I get to SUMS?  Though there’s ample reason to be optimistic on this question, with policies as vague and as broad as those in place at SUMS and countless other universities, there’s no way to be sure until I get there.  I hope not, but I can’t be sure.

That I can’t answer conclusively seems to be answer enough.


***

[1] — At my campus job during my undergraduate years, the guideline was that we should avoid saying things that we wouldn’t say in front of family members or faculty members (the “family and faculty” rule).  We started jokingly referring to it as the “Jesus and Marvin” rule, after Jesus and one of our supervisors.  Looking back, this sort of blasphemous taking of the Lord’s name may well have offended someone’s religious sensibilities, creating a “hostile workplace environment” based on religion, according to some interpretations of the law. Back to text.

Advertisements
  1. No comments yet.
  1. September 22, 2010 at 00:30
  2. July 23, 2010 at 16:38

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: