One school that led way is rethinking its rules

By Mitchell Zuckoff, Globe Staff, 10/21/98

MADISON, Wis. - Should a farm science professor be punished for using a Playboy centerfold to illustrate different cuts of meat? What if a history professor uses a racial epithet when describing the slave trade?

For the past 17 years, the answer at the University of Wisconsin was almost certainly yes. But for the past year, this bastion of political correctness has been rethinking that rigidity in a closely watched attempt to soften its faculty speech code, one of the nation's oldest and most restrictive.

''The challenge is to avoid using a speech code to deal with all irritating speech,'' said Roger Howard, associate dean of students. ''We really want to go after this very atrocious speech where the pattern will show at least some evidence of intent by a faculty member to make the environment hostile because of a student's race, color, gender, etc.''

The work is being viewed by academics nationwide as a turning point, or at least some of the first pebbles of a potential landslide among anti-harassment speech codes that most US campuses have adopted in the past 20 years.

To some, it is a long-overdue repudiation of censorship on campus. To others, it portends a swing of the pendulum back to second-class status for anyone not among the traditional elites.

The key question is: What limits, if any, should control communication between faculty and students, balancing First Amendment rights and a desire to protect students from harm?

Already, courts have struck down student speech codes as unconstitutional in New Hampshire, Michigan, California, and elsewhere. Wisconsin's student speech code was struck down by a federal judge in 1991, although the faculty code remained intact.

Some universities have been paralyzed by the controversies. At the University of Massachusetts, a verbal harassment policy that had been expected to take effect three years ago has languished in draft form, in light of concerns about vague language.

Wisconsin's reexamination is happening on a campus known at once for PC orthodoxy and freewheeling speech. The sidewalks throughout campus are alive with chalk graffiti hawking causes of all stripes, and a bronze plaque bolted to the main administration building sings the praises of ''that continual and fearless sifting and winnowing by which alone the truth can be found.''

In the end, the rewritten faculty speech code almost certainly will satisfy neither extreme, and the tensions are already showing. As the school's Faculty Senate prepares to receive a final proposal from a committee of faculty, students, and academic staff, deep philosophical and pragmatic differences have emerged, splitting the rewrite committee into competing camps.

Not everyone agreed the existing faculty code needed fixing, but most participants in the process agree the code is flawed at the very least because it makes no explicit endorsement of academic freedoms. Another criticism is that the procedure for dealing with allegations is inadequate. The code also has been faulted as too restrictive, outlawing any comments by professors that students find even vaguely demeaning.

Despite its longevity and the importance its backers attach to it, no professors have been disciplined under the code, although several have come close. The more immediate concern is whether the existing code has created a ''chilling effect'' on speech and is a tool to enforce leftist political orthodoxy intent on avoiding offense to such groups as women, gays, and minorities.

An early proponent of reworking the code was a professor who became enmeshed in it. Lester Hunt, a professor of philosophy, was accused of discrimination for using the word ''injuns'' while speaking privately with an American Indian student. He said he did not consider the word insulting, but settled the matter by writing an apology to the student at the university's suggestion.

''Some people, like me, teach subjects that concern all the hot-button areas - race, gender, you name it - and what the code does is threaten you with punishment if you say the wrong thing. That makes it difficult or impossible to teach these subjects effectively,'' Hunt said.

The committee proposal opens with a preamble that forcefully embraces the First Amendment and the academic freedom of professors. It also notes that intellectual exchanges in classrooms may be ''unavoidably hurtful.'' As such, any comments germane to the subject being taught are protected.

The proposal then spells out essentially three types of offensive speech: comments that debase or derogate an individual student; comments or epithets that are gratuitously debasing even if not directed at an individual; and offensive teaching methods for which there is no reasonable educational justification. Disciplinary action could be taken only if a faculty member repeated the speech or teaching method after being told it was offensive.

For instance, the proposal cites the use of the word ''nigger'' by a history professor teaching about slaves. If directed repeatedly at an individual, or even made in passing remarks to the class, a majority on the committee said there could be no good educational reason for such an epithet in that context, and therefore discipline was appropriate.

By contrast, if a literature professor assigned readings on race that employed the same epithet, and the professor used the word in class discussions of the book, that would be protected speech.

As an example of offensive teaching techniques, committee members cited what they said was a true story of an agriculture professor using a Playboy pinup as a ''teaching tool'' to distinguish cuts of meat. That incident occurred before the speech code was enacted, and the professor was not punished.

''These rules, like any law, express a community's moral sentiment, its sense of right and wrong,'' said Ted Finman, a law professor who wrote much of the original code in 1981 and was among the majority in the rewrite. ''Bad stuff still goes on and has to be addressed. Much of it is inadvertent, because there are a lot of instances in which white males simply are unaware that certain remarks are extremely demeaning to women, blacks, other minorities.''

But seven of the committee's 17 members want to make it significantly harder to trigger discipline, and only for the most egregious speech. The minority wants proof of ''intent'' by a faculty member to harm a student, and also wants students to prove they were somehow damaged by the offensive speech.

All three of the panel's student representatives - a gay man, an Asian-American woman, and a white woman - joined the minority.

''Racism, sexism, homophobia are all parts of our society, whether we want to admit it or not. We can't erect a wall around our university and pretend those things don't exist,'' said Jason Shepard, the openly gay president of the school's senior class, and a leader on the minority. ''Prepare us for the real world, and we'll deal with it at that point.''

Beyond Wisconsin, academics are divided on the usefulness of speech codes and whether they can ever pass constitutional muster.

''If you can throw somebody out of Yankee Stadium for being verbally indecorous, then certainly you should be able to criticize somebody in a university setting for being verbally indecorous,'' said Stanley Fish, professor of English and law at Duke and author of ''There's No Such Thing As Free Speech. And It's A Good Thing, Too.''

But Alan Charles Kors, a professor of history at the University of Pennsylvania, called speech codes an assault on the Bill of Rights and said they are almost always applied unfairly.

''If left-wing professors had to worry about creating a hostile environment for strait-laced white Republicans, if radical feminists had to worry about creating a hostile environment for men, these codes wouldn't last a day,'' said Kors. He and Boston lawyer Harvey Silverglate wrote the book ''The Shadow University; The Betrayal of Liberty on America's Campuses.''

Howard, Wisconsin's associate dean of students, said that while the codes are magnets for controversy, the attention they receive is disproportionate to their role in making campuses less hostile to women, minorities, gays, and the disabled.

''The speech code is 2 percent of a solution,'' Howard said. ''The danger is that we will focus so much time and energy on it that we lose sight of the broader cultural changes that need to be made.''