Public universities, like all government entities, must comply with the First Amendment. Nevertheless, many public universities have established speech codes to censor expression potentially offensive to women, African Americans, or other groups protected by civil rights laws. Universities commonly justify these rules as being necessary to prevent the creation of an illegal ‘‘hostile environment’’ on campus. University officials have not, however, been able to reconcile suppression of potentially offensive expression with the First Amendment.
The first wave of public university speech codes appeared in the late 1980s, with the rise of censorious political correctness. The University of Michigan’s code, for example, banned speech ‘‘that stigmatizes or victimizes an individual on the basis of race’’ or that ‘‘has the purpose or reasonably foreseeable effect of interfering with an individual’s academic efforts.’’1 Another part of the code prohibited speech relating to sex or sexual orientation that ‘‘creates an intimidating, hostile or demeaning environment for educational pursuits.’’
In furtherance of its code, the university distributed a handbook with examples of illicit speech. For example, a student organization, the book stated, would violate the speech code if it ‘‘sponsors entertainment that includes a comedian who slurs Hispanics.’’ The handbook also noted that expression of certain politically incorrect opinions, such as remarks by male students that ‘‘women just aren’t as good in this field as men,’’ were prohibited. Beyond these two examples, students could only guess at what speech was forbidden. A federal court concluded ‘‘that the University had no idea what the limits of the [p]olicy were and it was essentially making up the rules as it went along.’’
Ironically, complaints under the speech code overwhelmingly involved white students charging African Americans with hate speech. For example, the university punished an African American student for opining in class that homosexuality is a curable disease. Courts did not treat these early speech codes kindly: federal courts overturned on First Amendment grounds codes at Michigan,2 the University of Wisconsin,3 and Central Michigan University.4 Through the early 1990s, advocates of speech codes argued that, despite these lower court decisions, the Supreme Court’s ‘‘fighting words’’ doctrine allowed government regulation of ‘‘hate speech.’’ Under the fighting words doctrine, the First Amendment does not protect speech likely to incite the listener to imminent violence.
In R.A.V. v. City of St. Paul ,5 however, the Supreme Court overturned a conviction under a hate speech law for cross burning. In its ruling, the Supreme Court held that the government may ban all fighting words but it may not ban only select fighting words on the basis of their content. The hate speech ordinance in question banned only racist fighting words and therefore violated the First Amendment.6 The upshot of R.A.V. is that, first, public universities may not restrict student speech that allegedly creates a hostile environment when the speech does not rise to the level of fighting words.7 Second, even when such speech does amount to fighting words, public universities may not enact speech restrictions that single out for punishment fighting words that offend only members of certain protected groups.8 The only possible exception to the latter rule is if a university can show that the racist fighting words it banned are more likely to incite imminent violence than are other fighting words, and that this greater danger from racist fighting words, and not a desire to squelch racist speech as such, was the sole reason the university prohibited racist fighting words.
Given these constitutional barriers, public university speech codes were on the way out until the federal Department of Education revived them in 1994. Male students at Santa Rosa Community College had posted anatomically explicit and sexually derogatory remarks about two female students in a discussion group hosted by the college’s computer network.9 Several aggrieved students filed a complaint against the college with the DOE’s Office for Civil Rights. The DOE found that the messages probably created a hostile educational environment on the basis of sex for one of the students. University toleration of such offensive speech, the government added, would violate Title IX, the law banning discrimination against women by educational institutions that receive federal funding. Under this standard, to avoid losing federal funds, universities must proactively ban offensive speech by students and diligently punish any violations of that ban.
The DOE failed to explain how its rule was consistent with the First Amendment. Speech codes enacted by public universities clearly violate the First Amendment even if the codes are enacted in response to the demands of the DOE, so requiring public universities to enact speech codes or forfeit public funds would obviously be unconstitutional. Nevertheless, facing this choice, public university officials have ignored the First Amendment issue and complied with DOE guidelines. Although a few schools may truly be concerned about the potential loss of federal funding, the prevailing attitude among university officials seems to be that the DOE’s Santa Rosa decision provides a ready excuse to indulge their preference for speech codes. University officials implicitly reason that if the DOE can get away with ignoring the First Amendment, then so can they. Unfortunately, they may be right.
In any case, many public universities retain speech codes despite the lurking First Amendment issues. Some codes are so broad that, when taken literally, they are absurd. The University of Maryland’s sexual harassment policy, for example, bans ‘‘idle chatter of a sexual nature, sexual innuendoes, comments about a person’s clothing, body, and/or sexual activities, comments of a sexual nature about weight, body shape, size, or figure, and comments or questions about the sensuality of a person.’’10 So, at the University of Maryland, saying ‘‘I like your shirt, Brenda’’ is a punishable instance of sexual harassment. Further, because under Maryland’s code the prohibited speech need not be specifically directed at an individual to constitute harassment, even saying ‘‘I really like men who wear bow ties’’ is out of bounds, at least if a man who wears bow ties hears about it.
Public university censorship to prevent a hostile environment extends well beyond the sex discrimination issues raised in the Santa Rosa case. Federal law also bans discrimination in education on the basis of race, religion, veteran status, and other criteria, and universities argue that they must censor speech to prevent a hostile environment for groups protected by those laws, as well. As a measure of just how far the law extends, consider the actions of the Office of Federal Contract Compliance Programs. That office charged illegal harassment based on Vietnam-era veteran status when an exhibit at Ohio State University displayed pictures and postings criticizing the actions of American military personnel during the Vietnam War.11 So much for academic freedom and the spirit of open debate in higher education.
A more typical case arose when a member of Phi Kappa Sigma at the University of California, Riverside, designed a T-shirt advertising a ‘‘South of the Border’’ party. The shirt featured a figure wearing a serape and sombrero sitting on a beach looking at the setting sun and holding a bottle of tequila, along with a picture of a set of steel drums and a wooden tiki head, in which was carved the word ‘‘Jamaica.’’ The bottom of the shirt depicted a smiling Rastafarian carrying a six-pack of beer while standing in a Mexican cantina frequented by Riverside students, humming a lyric from an antiracist song by Bob Marley: ‘‘It doesn’t matter where you come from long as you know where you are going.’’12 Although not exactly a brilliant artistic gem, the shirt was nonetheless a little more creative and diverse than the average frat party ad.
Campus Latino activists, however, were not favorably impressed. They charged that the shirt ‘‘dehumanizes and promotes racist views of Mexican people’’ and they formally accused the fraternity of violating university rules by circulating ‘‘offensive racial stereotypes.’’ The fraternity president, Rich Carrez, apologized to the activists and pointed out that he was part Native American, the vice president of the fraternity was Latino, the T-shirt creator was Latino, and the fraternity was the most racially diverse on campus, with 25 white and 22 nonwhite members. The activists were unmoved and stubbornly clung to their view that the innocuous T-shirt promoted offensive stereotypes.
Ultimately, the university required fraternity members to destroy all of the T-shirts, apologize in writing, engage in community service, and attend two seminars on multiculturalism—an ironic punishment given that almost half the fraternity members were themselves minorities. The university also stripped the fraternity of its charter and expelled it from campus for three years. The university eventually lifted all of the sanctions, but only after legal intervention by the Individual Rights Foundation, a national network of lawyers that responds to threats to the First Amendment by college administrators and government officials.
Lawsuits, or even the threat of lawsuits, certainly seem to get campus officials’ attention. At some public universities, civil libertarians have used the threat of legal action to persuade school officials to abandon their speech codes. For example, in 1997, the Office of Social Justice at West Virginia University published a brochure defining illicit discriminatory behavior as, among other things, expression of politically incorrect sentiments. An example of such forbidden discrimination was provided: claiming that ‘‘women never do well’’ in a particular science class regardless, apparently, of whether the statement is true.13 With such strict limits on what thoughts and feelings could be publicly shared, WVU students might well have had trouble finding anything neutral and sensitive enough to say to each other. But not to worry, the brochure provided helpful ‘‘advice’’ for encouraging a welcome environment, such as substituting ‘‘friend, lover, or partner’’ for the word boyfriend or girlfriend. The brochure further cheerfully suggested that failure to comply with its advice would be punishable.
Concerned faculty members wrote to the president of the university, David Hardesty Jr., seeking assurance that the brochure was not a speech and behavior code for students and faculty. Hardesty instead confirmed his correspondents’ fears by writing that ‘‘[t]he right to free speech and the concept of academic freedom do not exist in isolation,’’ and that freedom of speech does not include the right ‘‘to create a hostile environment on campus.’’14 The university ultimately withdrew the brochure, but, as is no doubt becoming a familiar theme in these tales, only after the West Virginia Civil Liberties Union threatened to sue.15
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Regardless of whether their universities have formal speech codes, public university officials frequently restrict ‘‘offensive’’ student speech on an ad hoc basis. For example, UCLA suspended an editor of the student newspaper for running an editorial cartoon ridiculing affirmative action preferences. In the cartoon, a student asks a rooster on campus how it got into UCLA. The rooster responds, ‘‘affirmative action.’’ After the editor was sanctioned by UCLA, student editor James Taranto reproduced the cartoon in the California State University, Northridge, student newspaper and criticized UCLA officials for suspending the paper’s editor for engaging in constitutionally protected expression. Northridge officials suspended Taranto from his editorial position for two weeks for publishing controversial material ‘‘without permission.’’ However, when Taranto threatened a lawsuit, the school removed the suspension from his transcript.16 Taranto continued to pursue a career in journalism and currently edits Opinionjournal.com.
In another incident, administrators at the University of Minnesota, Twin Cities, prohibited the College Republicans from distributing at the school’s orientation fliers critical of then-president Bill Clinton. Several fliers contained R-rated humor, and one of them vulgarly satirized the president’s views on gay rights. University officials argued that the fliers violated the university’s nondiscrimination policy, violated orientation guidelines that require orientation to provide students with an ‘‘appreciation of diversity,’’ and were not ‘‘consistent with the goals of the university.’’17
After severe criticism from the American Civil Liberties Union and the local media—especially the Minneapolis Star Tribune —the university relented and permitted the distribution of the fliers. However, university president Nils Hasselmo stubbornly insisted that the flyer incident had only had the ‘‘appearance of’’ suppressing speech.18 He maintained that the orientation regulations that the fliers had violated were constitutional and had only been suspended, not repealed. Subsequently, an outraged Minnesota law student sued the university for violating its students’ constitutional rights. The university capitulated, agreeing not only to stop censoring student materials but also, in a welcome twist on the usual forced sensitivity training ritual, to have its administration attend a lecture on the protection of freedom of speech afforded by the First Amendment.19
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This chapter has so far dealt only with public universities, which, as government actors, are subject to the limits of the First Amendment. However, it is important to remember that private universities are not government actors and therefore are immune from the dictates of the First Amendment. The Constitution does not stop them from enacting speech codes. In fact, private universities probably have a First Amendment expressive association right to set speech guidelines on campus (see Chapter 8). Many private university speech restrictions would exist regardless of government antidiscrimination regulations. For example, one hardly expects universities with a traditional religious mission to tolerate blasphemous comments from their students. Also, many elite private universities are controlled by politically correct administrators and professors who support stringent speech codes banning insensitive and intolerant comments regardless of legal requirements.
But although private universities have the right to enact and enforce voluntary speech codes, the First Amendment prohibits the government from requiring private universities to administer speech codes. Nevertheless, under the Santa Rosa case discussed previously, the government has threatened to strip private universities of federal funding if they don’t enforce speech restrictions to ensure that their students are not exposed to a ‘‘hostile environment.’’ Moreover, individual students may sue universities for tolerating a ‘‘hostile educational environment,’’ in the same way that workers may sue their employers for tolerating a ‘‘hostile workplace environment’’ (see Chapter 2). There is no practical difference between the blatantly unconstitutional act of the government’s directly censoring speech at private universities and what the government actually does, which is to enforce laws that create legal liability for private universities that fail to proactively censor speech. The latter course may be less obviously Orwellian than the former, but its effects, that is, government censorship, are the same.
Brad Kvederis, a student at Claremont McKenna College, a private school in Claremont, California, learned this lesson the hard way. He published for his dorm a gossip newsletter called the Wohlford Free Press . Like many college publications, the Free Press included sexually suggestive material. Depending on which account of the relevant events one reads, the newsletter was either a relatively sober, albeit profanity-laced, publication that occasionally mentioned sex or a scandal sheet reporting on the drinking and sexual hijinks of dorm residents. In any event, three female students— only one of whom was mentioned in the newsletter—filed hostile environment complaints against Kvederis with the university. Fearing liability, the university suspended Kvederis for a semester and required him to undergo sexual harassment sensitivity training.
The ACLU sued on Kvederis’s behalf under a unique California law that prohibits private universities from regulating student speech (see Chapter 8). The court, however, dismissed the case on the grounds that Kvederis’s publication had ‘‘the potential to create a hostile environment and could have become the basis of sexual harassment claims’’ if the college had not intervened.20 Federal anti-discrimination law supersedes state free speech law, the court ruled. Before appeal, the college and Kvederis settled for undisclosed terms.21
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For any university to function, its administration must engage in content-based regulation of its faculty’s speech. That is to say, the administrators must, to a certain extent, dictate what professors will or will not talk about in class and the subjects they will or will not teach. For example, for a university to run smoothly, the administrators must determine what courses will and will not be taught, and on the basis of the applicants’ academic writings, which professors will or will not be hired and granted tenure.22 The inevitability of content-based regulation of academic expression on public university campuses suggests a strong civil libertarian case that government should not be in the business of running universities at all. After all, content-based speech restrictions are a clear no-no under the First Amendment. But once the government is allowed to control universities, university officials must be able to place reasonable restrictions on what their faculty members may say in the classroom.
Even the most hardcore proponent of academic freedom would have to concede that a professor assigned to teach 19th-century French literature can be penalized for using his class time to teach anthropology, in the same way that any other government employee can be punished for not doing his job. Similarly, a professor who uses his class as a forum to launch into irrelevant diatribes criticizing certain ethnic or religious groups may clearly be sanctioned for not doing his job. More problematic is the question of whether professors have the right to engage in classroom speech that is relevant to the topic at hand but that offends some students.
Academics, including the author of this book, generally believe that the danger to academic dialogue caused by restrictions on purportedly offensive speech outweighs the potential benefit of reducing offense to students. Indeed, sometimes the only way to get students to genuinely confront and engage in controversial issues is to risk offending them. The appropriate policy is one that fully protects professors’ classroom speech, as long as the speech has a reasonable relationship to the topic at hand (there’s no reason to tolerate a lecture on the glories of Mein Kampf from a woodworking professor), and as long as the offending speech does not constitute harassing behavior clearly directed at particular students .
Some federal court analyses of the constitutional issues involved in regulating professors’ classroom speech adopt a similar analysis.23 Other decisions, however, suggest that public universities have a broader latitude than this to set general guidelines on appropriate speech in class. In essence, under these decisions, universities are free to regulate any classroom speech as long as they can show that such regulations are reasonably related to legitimate pedagogical objectives.24 For example, a university may bar the faculty from using obscene language during class, regardless of context, on the grounds that university officials have determined that any educational benefit that may be gained from using such language is outweighed by the fact that it will distract and upset many students, interfering with their ability to learn.25 (A law professor at such a university would have a difficult time teaching many First Amendment cases, including the important ‘‘Fuck the Draft’’ case mentioned in Chapter 2.) Under this line of cases, arguably a university may even declare that certain controversial subjects, such as whether racial differences in IQ exist, are off-limits in the classroom because they are too distracting to students.
The caveat is that to comply with the First Amendment’s guarantees of free expression and the Fourteenth Amendment’s guarantee of due process, public universities must clearly spell out any restrictions on professors’ classroom speech in advance.26 However, because academic freedom is an extremely powerful and popular notion, few, if any, public universities promulgate detailed prospective speech regulations. Indeed, many universities spell out academic freedom guarantees in faculty contracts or in binding rules published in university handbooks. The threat of censorship remains, however, when universities adopt extremely vague guidelines banning ‘‘harassment’’ based on race, sex, and other attributes. The vagueness of these guidelines allows extremely sensitive or politically motivated students to launch harassment cases against unwary professors who offended them in class, which undermines the university’s claimed commitment to academic freedom.
The case of Professor Donald Silva of the University of New Hampshire provides an instructive example. Silva’s troubles started when, during his technical writing course, he used the concept of sexual intercourse to illustrate the process of focusing the thesis statement of a technical report. He told the class, ‘‘I will put focus in terms of sex, so you can better understand it. Focus is like sex. You seek a target. You zero in on your subject. You move from side to side. You close in on the subject. You bracket the subject and center on it. Focus connects experience and language. You and the subject become one.’’ In a later class, he used a famous remark about belly dancing—‘‘like jello on a plate with a vibrator under the plate’’—as an example of a vivid metaphor.
Silva had used these similes in class for many years, and he argued that they were effective in getting the attention of his students. Six of his students did not agree, although judging by the poor grammar and the spelling errors that plagued the written sexual harassment claim they filed against Silva, they could have used all the writing help they could get.27 One student wrote, somewhat incoherently, that ‘‘Silva started talking in a sexual manner which I thought was very inappropriated [sic] and also very affending [sic].’’ Another wrote, ‘‘During class we were discussion [sic] our technical reports when Don Silva . . . made [sic] a vulgar, inappropriate description of a ‘bowl of jello and a vibrator,’ to describe the belly dancer.’’ A third added, ‘‘I had questions about our assignment on 26 Feb, but due to his use of sex as a ‘focus,’ I walked away rather than asked [sic] him to clarify again. I didn’t want any more strange explainations [sic].’’ Yet another student was ‘‘very offended’’ by Silva’s ‘‘sexual refferals [sic].’’
Silva’s comments were arguably in bad taste, but they hardly rose to the level of the severe and pervasive conduct normally required to support a sexual harassment claim. Moreover, the university’s sexual harassment policy did not suggest that it regulated the comments at issue. The only examples the policy gave of remarks that could constitute sexual harassment were ‘‘unwelcome sexual propositions,’’ ‘‘graphic comments about a person’s body,’’ ‘‘sexually degrading words to describe a person,’’ ‘‘derogatory or sexually explicit statements about an actual or supposed sexual relationship,’’ and ‘‘derogatory gender-based humor.’’ None of these examples applied to Silva’s statements. Nevertheless, after several hearings that could most charitably be described as almost comically unfair, university officials found that Silva’s ‘‘focus’’ discussion had violated the university’s sexual harassment policy. The university suspended Silva without pay for one year and required him to attend psychological counseling sessions at his own expense.28
Silva responded by suing the university in federal court. The court issued a favorable preliminary ruling after finding, among other things, that the university likely violated Silva’s First Amendment rights. The court acknowledged that under appropriate circumstances the university’s sexual harassment policy could be applied to classroom speech because it ‘‘seeks to address the legitimate pedagogical concern of providing a congenial academic environment.’’ However, the policy was unconstitutional as applied to Silva’s classroom speech because it ‘‘employed an impermissibly subjective standard that unreasonably limited academic freedom.’’ The strong theme running through the court’s opinion is that a public-university professor may not be sanctioned for classroom speech unless he has been given prior notice that such speech is prohibited. Before the case could proceed further, the parties settled, with the university agreeing to all of Silva’s demands.29
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Much of the threat to academic freedom from antidiscrimination laws comes from campus radical feminists who seek to use the hostile environment component of sexual harassment law to stifle discourse they dislike. A University of New Hampshire women’s studies professor’s diatribe, reacting to Silva’s vindication, exemplifies the anti–free speech sentiment of many (though certainly not all) feminist academics:
Academia . . . has traditionally been dominated by white heterosexual men, and the First Amendment and Academic Freedom (FAF) traditionally have protected the rights of white heterosexual men. Most of us are silenced by existing social conditions before we get the power to speak out in any way where FAF might protect us. So forgive us if we don’t get all teary-eyed about FAF. Perhaps to you it’s as sacrosanct as the flag or national anthem; to us strict construction of the First Amendment is just another yoke around our necks.30
Ironically, preventing vague university antidiscrimination policies from becoming excuses to censor unpopular speech will ultimately benefit feminists and their anti–free speech allies in the multiculturalist and critical race theory movements as much as it benefits anyone else. One does not need much of an imagination to come up with examples of how antidiscrimination law could be used to silence left-wing academics like the New Hampshire women’s studies professor. For example, men taking classes from extreme feminist professors sometimes claim that these professors create a hostile environment for them. These claims sometimes have a legitimate basis. After all, Professor Mary Daly of Boston College went so far as to ban men from her feminist ethics class over a 25-year period,31 ensuring that male students had no access to her academic environment at all. More often, however, male students are simply uncomfortable with feminist professors’ radical viewpoints.
Highly questionable claims of discrimination by male students have already been reported. For example, a male undergraduate in a human sexuality course accused Toni Blake, a female graduate student teacher, of sexual harassment. Blake used a banana to demonstrate condom application and joked that men, like basketball players, ‘‘dribble before they shoot.’’ A male student complained that she ‘‘objectified the penis’’ and created a ‘‘hostile environment for him as a man.’’32 In another incident, a married male Christian student filed a sexual harassment lawsuit after a lesbian psychology professor presented a lecture on female masturbation. The student claimed to have felt ‘‘raped and trapped’’ by the lecture.33
While it would be unfair to speculate about the motives of these students, one can easily imagine situations in which students would bring such charges because they disliked their professors for ideological or other reasons. Unfortunately, that is exactly the spiteful behavior that hostile environment law invites. Even the weakest discrimination complaints can lead, at a minimum, to a mandatory investigation by the Department of Education. Michael Krauss of George Mason University’s law school, for example, spent months responding to one such investigation based on a frivolous student complaint, which he believes was motivated by a prior dispute he had with the student over grading. The complaint arose from Krauss’s query to a torts class about whether burning a cross and shouting ‘‘kill the niggers’’ in front of someone’s home constituted the tort of assault.34 The student suggested that using the n-word in class was discriminatory per se. Such incidents make professors reluctant to discuss issues involving race relations, rape, and other extremely important issues for fear that an offended or vengeful student will file a complaint.
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If left-wing professors wish to preserve their own academic freedom, they must learn to be more tolerant of those whose speech they currently seek to suppress. For the past several decades, the pressure to censor free speech on public university campuses has come primarily from the left. However, the current war against terrorism, and the frequent dissent within academe to that war, has shifted the censorship dynamic, putting many radical-left professors on the defensive. The First Amendment, and the values of academic freedom that have sprung up around it, will protect the vast majority of dissenters, but only because the radicals’ war against the First Amendment has so far been largely unsuccessful. These academics would do well to consider what their plight might be should they ever succeed in doing away with constitutional protection of unpopular speech.
In Canada, left-wing academics are beginning to learn firsthand what it’s like to have their own censorship vehicles used against them. For example, Professor Sunera Thobani of the University of British Columbia, a native of Tanzania, faced a hate crimes investigation after she launched into a vicious diatribe against American foreign policy. Thobani, a Marxist feminist and multiculturalist activist, had remarked that Americans are ‘‘bloodthirsty, vengeful and calling for blood.’’35 The Canadian hate crimes law was created to protect minority groups from hate speech, but in this case it was invoked to protect Americans. The police revealed the investigation to the media, despite a general policy against doing so, because, a hate crimes investigator explained, ‘‘Here we have a complaint against someone who is obviously from a visible minority, whom the complainant feels is promoting hate. Normally, people think it’s a white supremacist or Caucasians, promoting hate against visible minorities.... We want to get the message out that it’s wrong, all around.’’36
The police eventually decided not to file charges for undisclosed reasons, perhaps because Thobani’s speech was sufficiently rambling that her perceived attack on Americans could alternatively be construed as an attack on the ‘‘socially constructed’’ American nation invoked by President George W. Bush. Although still potentially insulting to Americans, this would not violate the hate crimes law. So, Thobani, who seethes with contempt for the Western world and the bourgeois liberties it protects, will stay out of jail—for now. Nevertheless, the incident reminds us that those who oppose freedom of speech would likely become the first victims of its demise. As Albert Jay Nock once wrote, ‘‘Whatever power you give the State to do things for you carries with it the equivalent power to do things to you.’’37 With freedom of expression, as with much else in life, what goes around comes around.