April 4, 1999, Sunday
Education Life Supplement
The issue that gray February day was one of delicate balance: how to assure the freedom to discourse on Hitler's ''Mein Kampf,'' as one participant put it, but not to use the word ''Jew'' as a verb, to lecture on sexuality but not to refer to female students as ''babes.''
The debate -- over a faculty speech code -- filled the pale blue faculty senate room in Bascom Hall with passion. It was the latest round in a dispute that began on the lakeside campus of the University of Wisconsin nearly two years ago but had been simmering, in some fashion, for generations. A plaque on the building's entrance celebrates freedom of inquiry -- the ''fearless sifting and winnowing by which alone the truth can be found'' -- installed after the 1894 exoneration of an economics professor accused of teaching socialism and other ''dangerous ideas.''
The question on the floor -- and it is being mulled on hundreds of campuses across the country, from the University of California to Bowdoin College in Maine -- was how to promote such ''fearless sifting'' while still creating a welcoming environment for groups that have historically felt slighted at American universities. For while robust intellectual inquiry is a self-stated goal of every university, so too is creating a diverse and tolerant nation.
Student and faculty codes punish, sometimes through suspension, expulsion or firing, words or deeds that create an environment perceived as hostile. Backers say codes insure that minorities and other vulnerable groups will not be mistreated.
''There is a cost to freedom of speech and it is borne unfairly by certain members of the community,'' asserted Stanlie M. James, a professor of Afro-American and women's studies. ''The harm is immeasurable.''
Opponents see codes as the worst form of politically correct paternalism.
''We don't want Big Brother stepping in and telling us what to think,'' said Jason Shepard, a student member of the committee examining the Wisconsin faculty code. ''They assume that all minority students, all members of the same group, have the same response to speech. That's ridiculous.''
Alan Charles Kors, a professor at the University of Pennsylvania, and Harvey A. Silverglate, a Boston lawyer, sought to document the effect of the codes and similar programs in their 1998 book ''The Shadow University.'' The university today, they complained, ''hands students a moral agenda upon arrival, subjects them to mandatory political re-education, sends them to sensitivity training, submerges their individuality in official group identity, intrudes upon private conscience, treats them with scandalous inequality and, when it chooses, suspends or expels them.''
Between 1987 and 1992, about a third of the nation's colleges and universities enacted codes of conduct that covered offensive speech, said Jon Gould, a visiting scholar at the University of California, Berkeley, who wrote his doctoral dissertation on codes.
Typical was the code passed in 1987 at the University of Pennsylvania that forbade ''any behavior, verbal or physical, that stigmatizes or victimizes individuals on the basis of race, ethnic or national origin ... and that has the purpose or effect of interfering with an individual's academic or work performance; and/or creates an intimidating or offensive academic, living or work environment.''
Most famously, the code was applied against a white Penn student named Eden Jacobowitz in 1993, when he called a group of noisy black sorority sisters outside his window ''water buffalo.'' The university's judicial inquiry officer charged him with racial harassment. An Israeli-born Jew, Mr. Jacobowitz insisted the term -- from the Hebrew behema, slang for a rude person but literally water buffalo -- has no racial overtones. After a highly publicized hearing before an administrative board, charges were dropped. Later, the code was abandoned.
While some codes have been struck down by Federal courts as patently illegal or amended after coming under attack in the media or by students, many colleges and universities still have them, though they are rarely invoked.
That, in fact, was the situation with the faculty code at Wisconsin until last year, when First Amendment advocates decided it was time for it to be abolished. This was partly because the code, which had never led to a disciplinary act, had still been the basis of several investigations of faculty members. Its existence, opponents argued, chilled discourse. The Wisconsin student speech code had been struck down by a Federal court in 1991. Now it was the faculty's turn. But efforts to kill the code proved more complex than imagined.
The February debate began with the usual legal disquisitions from the podium -- how to interpret the First Amendment in conjunction with Federal harassment regulations -- but shifted course when Amelia Rideau from Montclair, N.J., rose to speak.
Ms. Rideau, a 20-year-old junior, recounted how in a recent Chaucer class her professor described a character as ''niggardly.'' Ms. Rideau, a vice president of the Wisconsin Black Student Union, did not know the word, which means stingy and has no racial origins. She was unaware of the controversy in Washington the previous week over the firing (and ultimate rehiring) of a white mayoral aide for using the same word. The only black in the class of 50, Ms. Rideau said she approached the professor afterward and told him of her feelings.
Ms. Rideau thought the teacher had understood and agreed not to use the word again. But at the next class the professor brought in an article about the Washington flap and began a discussion about it.
''He used the word 'niggardly' over and over, five or six times,'' she said. ''I ran out of the class in tears. It was as if he was saying to me, 'Your opinion has no value.' ''
When her speech ended to vigorous applause from minority students in the Madison audience, most members of the faculty senate -- historians, geneticists and philosophers in worn sweaters and hiking shoes -- sat in silence. There was no doubting the depth of Ms. Rideau's pain. But there was no way any code could be enacted that would bar a professor from using the word ''niggardly.'' And that put the faculty in a quandary.
''Her talk created a sense that there are things here that students of color want that we can't deliver,'' David Ward, the university chancellor, asserted later.
Two percent of the student body at the University of Wisconsin, one of the nation's premier research institutions, is black. How to increase that representation is very much a concern of administrators.
''In the early 70's, institutions like ours made promises to recruit minority groups, and by the late 1980's it was clear many had failed,'' said Roger W. Howard, the associate dean of students. ''There built up a very significant level of frustration. We had said we wanted to be a different place, a more welcoming place. Yet we kept getting told that this was not a comfortable place for minorities. So we asked ourselves, 'What else can we do?' And that is partly where the speech codes came from.''
After much debate in early March, the faculty senate decided, by a vote of 71 to 62, to narrow its speech code but not quite abolish it. Starting with the pledge that the university is ''unswervingly committed to freedom of speech,'' the new language says that ''all expression germane to the instructional setting -- including but not limited to information, the presentation or advocacy of ideas, assignment of course materials and teaching techniques -- is protected from disciplinary action.'' This means that even if students are offended, professors cannot be punished if they prove the words were relevant to the lesson.
Wisconsin is not alone in its concerns or its solution. Attracting and retaining minority students is a top goal of every major university in the face of the growing legal and political threat to race-conscious admissions. In fact, the movement to end the codes is often allied with efforts to end those admissions policies. But just as often, the movement is spearheaded by people who believe universities have trampled on sacred free-speech grounds.
Mount Holyoke College in South Hadley, Mass., is reviewing its student and faculty speech code to support free expression more vigorously. At Southern Utah University, a computer-use policy, which bars downloading material that is ''racially offensive, threatening, harassing or otherwise objectionable,'' has also come under attack and university review.
Yet, despite some people's belief that colleges today are Stalinist outposts where the slightest misstep into apparent intolerance is punished by the political correctness police force (also known as deans of student affairs), campuses report few bias-related incidents. While there are occurrences involving hate E-mails or posters with racial slurs and intimidation of homosexuals, university officials say campuses are not plagued with the problems of a decade ago, when the codes were drafted.
For both faculty and students, it was a difficult time of transition from a mostly homogeneous society to a more mixed culture. Before the 1980's, campuses were mostly white-guy clubs: homosexuality was less accepted, campus culture less accommodating of minority concerns, and far fewer women were found on faculties and in professional schools.
As colleges diversified, speech codes for students and faculty were seen as one buffer. Brown University ejected a student for yelling racial and religious epithets outside the dormitories one night; Sarah Lawrence College brought disciplinary action against a student using an antigay slur and engaging in ''inappropriate laughter'' seen as mocking a gay student.
The University of Connecticut banned ''exhibiting, distributing, posting or advertising publicly offensive, indecent or abusive matter'' after a 1987 incident in which eight Asian-American students were spat on and taunted by six white students. Paradoxically, it was another Asian-American, Nina Wu, a junior, who challenged the protective policy by hanging a poster listing groups she disliked, including ''homos,'' on her dormitory door. After throwing Ms. Wu out of university housing, the university reinstated her under a judge's order and withdrew the restrictions.
In the mid-80's, when the Massachusetts Institute of Technology was still heavily male (today it is nearly half female), a group of women students complained to the provost about sexual harassment on campus. The provost, John Deutch, asked one of his deputies, Samuel Jay Keyser, to devise a policy against sexual harassment.
Among the rules written by Mr. Keyser's committee was the banning of any sexually explicit film on campus without a film board's approval. The board, a mix of faculty, students and administrative staff members, was called the Ad Hoc Pornography Screening Committee, and it adopted guidelines that included an insistence that the film ''reflect believable reality or normalcy in the relationships and sexuality displayed'' and that the film ''not unfairly reflect the viewpoint and sexual feelings of men and/or women.''
The code was challenged by Adam Dershowitz, a student (and nephew of Alan Dershowitz, the Harvard law professor), who projected the movie ''Deep Throat'' on the wall of an M.I.T. dormitory common room on registration day, 1987. He was prosecuted by the university under the code, but the charges were dismissed by a faculty-student committee, which found that the film rules were ''an excessive restraint on freedom of expression at M.I.T.'' The code was quietly abandoned several years later.
Conservatives, horrified by what they saw as social engineering, soon joined forces with liberals who were worried about free speech to condemn all such codes. Critics said vigorous, sometimes hurtful debate was the point of a university. As Jonathan Rauch wrote in his 1993 book ''Kindly Inquisitors,'' ''If you insist on an unhostile or nonoffensive environment, then you belong in a monastery, not a university.''
Mr. Shepard, the University of Wisconsin student, said such codes do more harm than good by offering false comfort. The better way, he says, is for vulnerable groups to face the discomfort straight on: ''Pursuit of knowledge requires us to ask the tough questions,'' Mr. Shepard, who is gay, said. ''And when we do so, people feel uneasy. There is no way around that.''
Today, Mr. Keyser, who is retired, agrees. ''The codes were a mistake. They were a response to a significant group in our community that was unhappy. But you can't solve the problem with a code. It was an easy solution that didn't work.''
That view is not universal. Apart from black, gay and Hispanic student groups who say that they suffer from humiliation, a number of women faculty members at Madison recalled the uneasy life before codes. Theresa Duello, a professor of obstetrics and gynecology at Wisconsin's medical school, said that when she joined her department in 1982, she was told by the chairman that he could not believe he had to introduce a woman who was taller than he and thought he would ask her to begin by discussing her first date.
Carin A. Clauss, a law professor who campaigned to keep the code, said she was especially sensitive to the need for regulations supporting minority groups and women because she went to law school when women made up fewer than one percent of the class.
Professor Clauss's main opponent in Madison was Donald Downs, a political scientist who has come full circle. His first foray into the free-expression issue was in 1978, when he wrote a book on American Nazis seeking to march in Skokie, Ill., home to many Holocaust survivors.
''I really identified with how the survivors felt,'' Professor Downs recalled. ''I argued that targeted racial vilification as a form of assaultive speech crosses the First Amendment line. I hadn't thought hard enough about the special place of free speech in a public forum.''
Today, he says, he would favor permitting the Nazis to march in Skokie just as he favors doing away with all speech codes because they sacrifice something too significant. He draws parallels with Prohibition. He also sees an analogy with affirmative action, saying that, like codes, it gives rights to one group by taking rights away from another, something he opposes.
This is a central point made by Professor Kors and Mr. Silverglate in their book ''The Shadow University.''
They see the codes as part of a larger liberal orthodoxy imposed by the 60's generation that has taken over college faculties and administrations, especially the offices of student affairs, which promote sensitivity and diversity training during freshman orientation, for dormitory advisers and in classrooms.
They say the main victims of this orthodoxy are those who are not part of it, like Christians who consider homosexuality and abortion unacceptable and find themselves unable to express themselves on campuses.
There are others who say that while they oppose the codes now, they served a role when they were enacted. ''There is no question that the codes did, to some unmeasurable extent, influence and help create more appropriate attitudes toward race and gender and sexual orientation,'' Professor Downs said. But this was at the cost of instilling fear of intellectual honesty.''
Richard Delgado, a law professor at the University of Colorado and an early advocate of codes, says that social scientists increasingly favor what is called the confrontation theory, which holds that the best way to dampen racism is through clear rules that punish offenders because the rules' very existence leads people to conform to their principles. He says this has largely replaced the social-contact theory, which asserts that racism is best overcome by placing people of different creeds in constant contact with one another, and that through such contact they will see the error of racist attitudes.
Despite the codes, despite the changes campuses have made in recent years, the vulnerability felt by minorities remains raw.
Michael S. McPherson, the president of Macalester College in St. Paul, says that in October 1997, a black student found racist slurs written on the note board she had hung outside her dormitory room. The culprit was never found but students held a vigil and public meetings. Even though there has been no similar event on the campus since, black students still tell Mr. McPherson how the incident upset them.
It is that gnawing sense of vulnerability that has made the idea of removing the codes unpalatable to the people they were set up to protect. They recognize the shaky legal ground on which they sit -- no student speech code that has been challenged in court has survived -- and worry that the codes will be abused if left on the books. But they fear the signal such a change would send to minority groups.
''As we have become more integrated, I have a sense that the sorts of incidents we had 10 years ago we don't really have today,'' observed Professor Clauss of Wisconsin. ''Now, women make up 47 percent of our law school and things are certainly easier. But we are getting Hmong and Muslim students. I am never sure that minority interests are adequately protected. There was a Muslim student in the health program here who raised religious objections to massage therapy and wanted accommodations to respect his belief. Whether we take those things seriously depends on sensitizing people. Who knows what minority will arrive tomorrow?''
Copyright 1998 The New York Times Company