In March, a group of students gathered on campus to speak out about The Chronicle's publication of an advertisement calling slavery reparations a racist idea. Members of the group passed a microphone around a packed circle, encouraging students and faculty to explain their offense at the ad's content as well as the student-run newspaper's decision to run the ad in the first place. Some students talked about the advertisement's logical flaws; others raised the possibility of punishing the newspaper's editors.
In that circle, protesters danced around an idea that has afflicted academe for the last 20 years: speech codes.
Over the last two decades, universities around the nation have seen the rise--and to some extent, the fall--of policies limiting what can and cannot be said. The policies started gaining popularity in the 1980s; some people track their rise alongside that of political correctness. The courts warned public universities not to enact codes that punished speech for its content, but many schools did so anyway. Private institutions could design their own speech codes unfettered by issues of legality, and those codes often came with teeth--anything from judicial hearings to notations on transcripts to expulsion. In 1990, there were approximately 75 hate speech codes in place at American colleges and universities. One year later, the number had grown to more than 300. The Foundation for Individual Rights in Education is halfway through a survey of college campuses; so far, executive director Thor Halvorssen says a full two-thirds of schools today have speech codes or similar policies.
By FIRE's definition, Duke is one of them. While Duke has no official speech code--Vice President for Institutional Equity Sally Dickson says "We're not interested in speech codes"--there are sanctions for severe or persistent behavior that interferes with other people's work. "As I understand it, the history of harassment policies is that they were addressing the experiences of sexual harassment. I think we here at Duke have broadened the harassment protection," Dickson says. "It's a very broad policy that includes all kinds of harassment. We don't want people to feel that they are being disrespected."
Duke's harassment policy, enacted in 1994, begins with a disclaimer, explaining that it should not be used to curtail academic freedom. However, the bulk of the policy is relatively vague: "Harassment is the creation of a hostile or intimidating environment, in which verbal or physical conduct, because of its severity and/or persistence, is likely to interfere significantly with an individual's work or education, or affect adversely an individual's living conditions."
That sounds reasonable. But Halvorssen says it's "right out of Nazi Germany, right out of Mao's China, thought reform." Given to phrases like "entrenched campus orthodoxy" and "totalitarian threat," he makes the case that private universities are betraying their responsibilities--both legal and moral--by obscuring the details of their codes in overly broad language. He cites cases:
Linda McCarriston, a tenured poet at the University of Alaska-Anchorage--and a far-left liberal--published a poem last December called "Indian Girls" that lamented child abuse among Native Americans. A student who
thought she deserved a higher grade in McCarriston's class on ethnic writings latched onto the poem and began a one-woman campaign to bring down McCarriston as a racist. The administration investigated McCarriston and spoke ominously of "resolving the matter" until the university president resolved it for them by defending the professor. Eden Jacobowitz, a student at the University of Pennsylvania, was studying in his dorm room one night in 1993. When a group of black sorority sisters interrupted his studies by throwing an impromptu party on the quad, he leaned out his window to yell. The first phrase that popped into his head was "water buffalo" (the Yiddish word for "water buffalo," when used as an insult, means "a noisy, oafish person"). The sorority sisters filed a formal complaint, and Penn administrators convicted Jacobowitz of using a racial slur. They told him to attend sensitivity training. He refused and was expelled. Only when the national media picked up the story did Penn recant.
Sean Rudolph, a graduate student at New Mexico State University, was allowed to speak his mind--but only in three small "free-speech zones." The rest of campus is off-limits to students who want to protest or pass out leaflets. Last year, Rudolph tried to distribute flyers in front of the campus student center, a prohibited area. The topic of his outrage? Free speech. The flyers pointed out the problems with the "free-speech zone" policy and asked for contributions to an underground newspaper. Rudolph refused to give up his flyers when he was approached by police. He was arrested and charged with obstructing an officer. The next day, another student tried the same stunt--only this time, the flyers praised the free-speech policy. Strangely enough, that student was not arrested.
The problem demonstrated by these examples, Halvorssen says, is that the schools do not outline their speech codes from the get-go. For him, the policies at ultraconservative Bob Jones University are more acceptable than broad harassment clauses because at least they are clear. "At private universities, if the code is unadvertised it constitutes a breach of contract and false advertising," he says. "Schools like Bob Jones make it clear up front that if you attend this school, you do not have the same rights you have off campus, and that's fair.... But an elite school shouldn't promise freedom of speech and then deliver it selectively."
Dickson counters that Duke has been up front. "I think that our policy is very mindful of protecting free speech," she said. "We have sent out to every single student the overview of the harassment policy, we have periodically run ads.... I think that is absolutely important, and also legally required."
The breadth of Duke's code may make it a little confusing, but it allows administrators to take circumstances into account on a case-by-case basis, says Dickson. That means, Dickson says, outrageous stories like McCarriston's, Jacobowitz's and Rudolph's aren't likely to play out here.
"It's not designed to address trivial types of instances," says Maggie Sloan, OIE's director of harassment prevention and gender equity programs. "There was a lot of concern at the time the policy was promulgated that it would affect academic freedom. People
Speech codes are meant to curtail speech that incites violence, not speech that is offensive; in this respect, they are backed by the law. But harm may not be the only criterion for restricting speech in some cases. A theater owner, for example, has a right to remove a heckler when the heckler's behavior keeps the audience from enjoying the play. Similarly, some would argue, a campus has a right to remove a student when his behavior keeps others from learning. Hence the basis of Duke's policy. "To the extent we can balance whatever social utility is served by this kind of speech--which seems to be quite minimal--there's really very little justification for it, against the disruption and harm that it does to the recipient. I really have little difficulty with punishing it," says Gerald Uelman, dean of the Santa Clara University School of Law and a national ethics expert.
Still, even the most carefully crafted speech code can be misused if the criterion for hate speech is vague and reliant on intent. Defined as "speech that interferes with someone's ability to learn," hate speech could include almost anything. A code that is purposely narrow may leave prejudiced actions unpunished, but a code that is purposely broad can be misapplied in cases like Jacobowitz's. Vague language can also obscure exactly what constitutes a violation. For instance, Halvorssen says he doesn't think a broad speech code would cover anti-white comments. "Where these speech codes exist they are applied selectively," Halvorssen says. "If we look at what exactly it is the speech codes say, they seemed aimed at everyone, but they are the ideal examples of the abandonment of equality on campus."
Finally, Halvorssen says, speech codes coddle students and leave them unprepared for life after graduation, inhibiting, rather than encouraging, tolerance of diversity. "They trivialize true harassment by calling something that offends them to be harassment," Halvorssen says of speech code proponents. "The most outrageous ideas in the past--civil rights, acceptance of lesbians and gays--started on college campuses. If colleges are not allowed to be incubators for these ideas, we are going to have a serious problem."
The tide may be turning. Of the few student speech codes that have met with legal challenges, all have been struck down. And faculty speech codes may be losing popularity as well: For example, the Faculty Senate at the University of Wisconsin at Madison, a pioneer of speech codes in the 1980s and '90s, voted last year 71-62 to pare down its code so extensively as to abolish it.
Certainly, it is no longer politically correct to be politically correct. And if FIRE has its way, more legal challenges are in store. Halvorssen says that after FIRE completes its survey, it will challenge every single code, circuit by circuit, in what he calls "a national rollback effort." Duke may be on his list. "If it's hidden in the harassment clause, if it has examples of conduct that will not permitted, if it has over-broad language, it's a breach of common law," he says. "You can be sure FIRE will be attacking."
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