February 2004 aaUPBEAT

A National Trend: Speech Restrictions in Higher Education

Introduction

At the end of the Fall 2003 semester, Harvey Silverglate, an ACLU free speech lawyer, spoke at UD on, among other issues, the stifling effect that higher education speech codes can have on academic freedom and First Amendment rights. Silverglate, along with the well-known conservative Alan Kors, co-directs the Foundation for Individual Rights in Education (FIRE), one of those rare organizations that is respected by many academics regardless of their political leanings.

During Silverglate's UD speech, he praised our University's absence of speech codes but nonetheless pointed out that UD is the exception not the rule.

Speech Codes

Mr. Silverglate's concern about higher education speech codes is well-placed. Over the last two decades, more effort has been made than at any time since the McCarthy period to define what types of speech are and are not acceptable within academic communities. The impulse behind this activity has often been well-intentioned: as the institutional nature of bias against people of color, women, gays and other groups has been increasingly detailed by historians and social scientists, the desire to protect these groups from hate-based language has increased.

Unfortunately, good intentions don't always result in good law.

The problem is that speech codes designed to protect the discriminated-against almost always end up supporting language restrictions that (a) prohibit certain types of speech in constitutionally questionable ways or (b) separate guilt from any meaningful criteria for determining guilt or (c) try to regulate thinking itself.

Examples of such infringements abound.

In 2001, the Third Circuit Court of Pennsylvania had to overturn a State College Area School District ruling in which Christian students who believed that homosexuality was a sin were found guilty of hate speech for stating their beliefs. The issue of course wasn't whether their beliefs were right or wrong, but whether they had the right to express them.

In a University of Wisconsin speech code that since has been struck down by the courts, a student or faculty member could be found guilty of making racist or sexist or homophobic remarks even if the only evidence against them was that the complainant "felt" assaulted or "perceived" the accused of intending them harm; external criteria for the determination of guilt or innocence were subordinated to the alleged victim's feelings on the matter. As Herbert London, a humanities professor at NYU, commented in reference to a similar speech code at his own institution: when "accusations are based on 'impact,' not intention" the result is that "the accused is guilty" just as long as "the accuser believes him to be guilty."

Another example of a speech code gone haywire occurred at the University of Pennsylvania where a student was charged with racist speech after yelling at a small group of noisy African-American students late at night to be quiet. Although it was proven that the accused used no racist terms, the administrator overseeing the case against him tried to establish that if the accused's thoughts were racist (which was never proven), then (a) the student's speech was racist in spirit even if he employed no explicitly racist terms and (b) the alleged victim's accusation that hate speech had been directed against her/him was justified. As in the overturned University of Wisconsin speech code, the UPenn administrator attempted to give alleged victims' the power to determine what was and what wasn't offensive speech. The case was eventually dropped.

Obviously, the instances cited exemplify a way of looking at language-use that prioritizes group morality over the individual's right of free expression. Such a tendency inevitably culminates in an interpretation of the law that views the First Amendment as more applicable to those who express popular ideas than to those who advocate unpopular, or "immoral," views and sentiments. This approach negates the vision that Oliver Wendell Homes argued for in his famous statement: "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought – not free only for those who agree with us, but freedom for the thought we hate."

Unfortunately for the academic world, too often higher education administrators show more interest in placating the "voices of morality" than in adhering to the First Amendment. Fifty years later, most of us possess at least a fragmentary knowledge of how this was true during the McCarthy period when higher education institutions were swept up in the anticommunist hysteria of the times and in the process contributed to the unjustified ruin nation-wide of hundreds of faculty members' careers. For academia, one of the more embarrassing events of that time occurred in 1953 when the presidents of 37 of the nation's leading universities released a public statement reminding professors of their "obligation" to cooperate with McCarthy's committee. The statement also included the following admonition just in case the nation's faculty members hadn't yet understood the message: "Invocation of the Fifth Amendment places upon a professor a heavy burden of proof of his fitness to hold a teaching position and lays upon his university an obligation to reexamine his qualifications for membership in its society."

But as important as the McCarthy period is to understanding post WWII U.S. history, the repression of free speech in the U.S. isn't merely a McCarthy era phenomenon. As we have already indicated, today's campus speech codes represent an equally unsettling, although less overtly political, repressiveness, one that violates Holmes' belief that protecting "freedom for the thought we hate" is a key aspect of people's First Amendment rights.

Well, it may be key, but it's certainly not always respected.

One March day at Brown University in 2001, campus-wide debate broke out when it was discovered that just about every copy of the day's edition of the school newspaper was stolen prior to distribution. The reason: the newspaper contained a paid advertisement entitled "Ten Reasons Why Reparations for Slavery Is a Bad Idea-and Racist Too." The advertisement, written by conservative author David Horowitz, was considered by elements of the student population and faculty to be racially insensitive and unwarranted. As a result, some individual or some group organized a mass theft of that day's newspaper.

Of course, not all problems of speech repression are one-day affairs.

The drawn-out case of Prof. Dean Cohen, a tenured faculty member at San Bernardino Valley College, is a good example of the moral tangles that often make it difficult to immediately discern the free speech issues that lie at the heart of certain campus debates about "right" speech and "right" behavior.

In 1996 Cohen appeared as the plaintiff in a case before the U.S. Court of Appeals for the Ninth Court in California. His suit's purpose was to fight his college administration's determination a few years previously that he was guilty, as one of his students had alleged, of violating the school's new sexual harassment policy with classroom behavior that had "the effect of unreasonably interfering with an individual's academic performance or creating an intimidating, hostile or offensive work environment." "According to the court, the college's thinking in finding Cohen guilty was murky because it entailed penalizing him, without any reasonable pre-notice or solid criteria for doing so, for a devil's advocate approach to teaching that he had employed for years without previous criticism from the administration. The court described that approach as follows: "Cohen... assigned provocative essays and discussed subjects such as obscenity, cannibalism, and consensual sex with children in his remedial English class. In one class he read articles from Playboy and Hustler and assigned the class to write an essay defining pornography." The complaining student argued that Cohen's in-class attitude, as expressed in his assignments and occasional use of profanity and his focus on sexual topics, amounted to the creation of a climate of sexual harassment.

After deciding that the student was justified in her complaint, the college administration mandated that Cohen (1) from that point on provide them with course syllabi before being allowed to teach his courses, (2) attend a sexual harassment seminar, (3) undergo a formal evaluation of his teaching abilities, (4) become sensitive to the needs of his students and (5) alter his teaching methods.

In its response to Cohen's suit the U.S. Court of Appeals ruled, as other courts have ruled with regard to other speech codes, that the college's finding against Cohen didn't stand up constitutionally since the speech and sexual harassment codes which he supposedly violated were too vague to be utilized effectively. In part, the court's ruling stated, "We hold that the Policy is simply too vague as applied to Cohen in this case. Cohen's speech did not fall within the core region of sexual harassment as defined by the Policy. Instead, officials of the College, on an entirely ad hoc basis, applied the Policy's nebulous outer reaches to punish teaching methods that Cohen had used for many years. Regardless of what the intentions of the officials of the College may have been, the consequences of their actions can best be described as a legalistic ambush. Cohen was simply without any notice that the Policy would be applied in such a way as to punish his long-standing teaching style -- a style which, until the College imposed punishment upon Cohen under the Policy, had apparently been considered pedagogically sound and within the bounds of teaching methodology permitted at the College."

Because of problems like these, the national AAUP has taken a strong stand against higher education speech codes. Although the union acknowledges that the historical realities which have led some students and faculty to argue in favor of "forbidding the expression of racist, sexist, homophobic, or ethnically demeaning speech" are indeed worthy of condemnation, the union nonetheless rejects the speech code option. The AAUP's position is that "rules that ban or punish speech based upon its content cannot be justified" and in fact contradict higher education's mandate to cultivate learning environments characterized by free speech. Because of this commitment to free speech, the AAUP has adopted the position that the proper way for higher education institutions to fight bigotry is to "adopt and invoke a range of measures that penalize conduct and behavior, rather than speech (emphasis ours), such as rules against defacing property, physical intimidation or harassment, or disruption of campus activities. All members of the campus community should be made aware of such rules, and administrators should be ready to use them in preference to speech-directed sanctions."

In other words, thought and speech shouldn't be punished; unacceptable actions, however, should be.

Special One-Time Faculty Incentive Retirement Program

One year ago in the February 2003 Upbeat we wrote as follows about the deadline for the Special One-Time Faculty Incentive Retirement Program:

Faculty who are considering retiring from the University in the near future have until June 30, 2003 to sign an intent to retire agreement. Signing by that time will make a retiring faculty member eligible for the special incentive program that was negotiated by the AAUP and Administration.

Facts that you should know about the incentive program include:

Fulltime faculty members who sign the intent to retire agreement by the date mentioned above are eligible for the incentive program just as long as their effective retirement date is no later than June 30, 2005.

Fulltime faculty who previously signed a retirement agreement with an effective retirement date between July 1, 2002 and June 30, 2005 are also eligible to participate in the incentive program.

For eligible faculty, the University will contribute 11% of the final base salary to the faculty member's TIAAS/CREF or Fidelity retirement account for an additional two years after the effective date of retirement.

This one-time retirement incentive program will not be available, or otherwise apply, to any fulltime faculty member who does not sign an intent to retire agreement on or before June 30, 2003.

Seventy-one faculty members took advantage of the above offer and will retire by June 30, 2005. The distribution by college of those who accepted the incentive is as follows: Agriculture and Natural Resources, 6; Arts and Sciences, 38; Business and Economics, 1; Engineering, 5; Health and Nursing Sciences, 6; Human Services, Education and Public Policy, 12; and Marine Studies, 3.

The University also provided the Incentive Retirement Program to 34 faculty who had signed retirement agreements prior July 2002 and whose retirement dates fell on or before June 30, 2005. The distribution by college for this group of faculty is as follows: Agriculture and Natural Resources, 2; Arts and Sciences, 24; Business and Economics, 1; Engineering, 3; Health and Nursing Sciences, 1; and Human Services, Education and Public Policy, 3.

Between the two groups, the total number of faculty who accepted the incentive is 105.