Linguistic Hygiene (again)

Harold F. Schiffman haroldfs at
Fri Dec 1 13:33:03 UTC 2006
>>From the issue dated December 1, 2006

Only Speech Codes Should Be Censored

I often ask audience members at higher-education conferences how many of
them come from campuses with "hate speech" codes. A substantial minority
raise their hands, confirming research that about a third of the nation's
colleges and universities continue to promulgate student disciplinary
rules prohibiting expression that "subordinates" others or is "demeaning,
offensive, or hateful." Such continued adherence to speech codes is by now
predictable, but remains puzzling. From a lawyer's perspective, the courts
have spoken:  Broadly written speech codes adopted by public institutions
and private institutions adhering to First Amendment standards are
unconstitutional.  The legal parameters are becoming so well settled that
enforcement of those codes may expose public-college administrators to
personal liability for violating clearly established constitutional

Understanding the speech-code phenomenon, however, requires looking beyond
the law to the realities of campus politics. However sporadically
enforced, speech codes serve the administrative purpose of broadcasting an
easily identifiable institutional commitment to providing a safe and
welcoming environment to a wide array of presumably vulnerable students.
What's rarely considered, however, is the likely long-term impact on those
very students whom administrators seek to protect. We live in a
disputatious society. Beyond a few narrowly defined exceptions to the
First Amendment (such as "true threats," defamation, and "severe or
pervasive sexual harassment"), our graduates won't be able to turn to a
protective government to silence expression they don't like. How are we
preparing them to participate in a contentious marketplace of ideas, other
than training them to shout a reflexive "Shut up!"?

Court cases testing the limits of the First Amendment usually involve
provocative expression. Provocative expression, in turn, tends to be
associated with social, political, or ethnic minorities' striving to make
themselves heard. Those minorities will be at greatest risk from
speech-code enforcement, since majorities on college campuses and
elsewhere are unlikely to censor themselves. A classic example in the
higher-education setting is the 1973 U.S. Supreme Court decision in Papish
v. Board of Curators of the University of Missouri. The petitioner in that
case  a journalism graduate student with a prior history of circulating
what the university regarded as "pornographic, indecent and obscene"
literature from the Students for a Democratic Society  was expelled for
selling an underground newspaper that featured a front-page cartoon
depicting policemen raping the Statue of Liberty and the Goddess of
Justice, and that contained an article with an expletive as a title.

The Supreme Court reversed the student's expulsion and stated that "the
mere dissemination of ideas  no matter how offensive to good taste  on a
state university campus may not be shut off in the name alone of
'conventions of decency.'" The court rejected the argument that the
expression was "obscene" (i.e., appealed to prurient interests) and
concluded that "precedents of this Court make it equally clear that
neither the political cartoon nor the headline story involved in this case
can be labeled as constitutionally obscene or otherwise unprotected."

There is nothing remarkable about the court's conclusion. It echoes
Justice Hugo Black's classic dissenting opinion in Communist Party v.
Control Board (1961) that the "freedoms of speech, press, petition and
assembly guaranteed by the First Amendment must be accorded to the ideas
we hate or sooner or later they will be denied to the ideas we cherish."
And it can be found in more-recent decisions, like Rosenberger v.
University of Virginia (1995), where the court saw student freedom of
expression in a campus "marketplace of ideas" as the foundation of higher
education itself:

"In ancient Athens, and, as Europe entered into a new period of
intellectual awakening, in places like Bologna, Oxford, and Paris,
universities began as voluntary and spontaneous assemblages or concourses
for students to speak and to write and to learn. ... For the University,
by regulation, to cast disapproval on particular viewpoints of its
students risks the suppression of free speech and creative inquiry in one
of the vital centers for the nation's intellectual life, its college and
university campuses."

What's striking, then, about the Papish case is not the majority opinion,
but the dissents by Chief Justice Warren Burger and Justice William
Rehnquist. Chief Justice Burger summarized a core element of their
argument when he wrote, "In theory, at least, a university is not merely
an arena for the discussion of ideas by students and faculty; it is also
an institution where individuals learn to express themselves in
acceptable, civil terms." Burger's perspective  that student freedom of
expression on college campuses could be circumscribed by pedagogical
concerns both in and outside the classroom  would have provided a legal
foundation for campus speech codes, had it ever attracted a majority on
the court.

Yet out of many law-review articles promoting the campus speech-code
movement in the 1980s, I found none that commended the Burger or Rehnquist
dissents in Papish. That's a remarkable omission. Why not highlight a key
dissent from the chief justice that advances your position? The only
conceivable answer is that supporters of speech codes on the left were
reluctant to concede that such codes were also attractive to the
ideological right. In those heady, self-righteous days, no one wanted to
acknowledge that giving universities broadly defined powers to censor
uncivil speech might be used in ways most speech-code advocates wouldn't

Unfortunately, the fundamental agreement between the right and left on the
need to promote campus civility was primarily a consensus about
methodology. Both depended on punishment rather than education, suasion,
and peer influence. The end result went beyond a series of failed speech
codes at some of the nation's leading universities  all eventually struck
down by the courts. It ultimately promoted a culture of silence on issues
of race and constituted a lost opportunity to teach students how to
confront "bad" expression with expression that was better reasoned and
better expressed.

Perhaps the best post-mortem of a failed speech code involved the
University of Wisconsin code, struck down by a federal court in 1991. In a
1993 Los Angeles Times Magazine article, the Pulitzer-Prize-winning writer
Barry Siegel reported that Roger Howard  the associate dean of students at
the Madison campus, an initial supporter of the code, and an administrator
charged with its enforcement  eventually concluded that "it's better
policy not to have a code. ... The human instinct  or the American
instinct  for censorship is just too strong." Howard was particularly
concerned that the code promoted a "McCarthyesque venue. ... I've heard of
students saying 'Shhh  don't say anything about affirmative action, the
university will punish you.' ... I think there was a chilling effect."

Siegel's 1993 article on the demise of the UW code, however, also helps
explain why speech codes continue to endure on other campuses more than a
decade later: "Beyond the desired diversity of color and gender," he
wrote, "surely there was also an enforced orthodoxy of thought and
expression. ... [A]mid all this talk of the code's value as symbol, it was
a bit unclear just whom the symbol was meant to protect  minority students
from harassment by racists or UW leadership from denunciation by
minorities." Speech codes, in other words, may serve the primary purpose
of diverting attention from more substantive issues of inclusion and
civility, allowing administrators to focus on cosmetic approaches unlikely
to produce any lasting change in campus cultures.

In 2003, following a lawsuit by a free-speech advocacy group, a federal
judge issued an injunction against Shippensburg University that barred it
from enforcing parts of its speech code. The university abandoned its code
in 2004, even though the case's plaintiffs had not been punished for
violating it. The court observed, "While we recognize that citing students
under the suspect provisions has not been a common practice, in the hands
of another administration these provisions could certainly be used to
truncate debate and free expression by students." Indeed, one of the
student plaintiffs in the case asserted that she "was reluctant to advance
certain controversial theories or ideas regarding any number of political
or social issues because ... she feared that discussion of such theories
might be sanctionable."

The Shippensburg case highlights that even dormant speech codes continue
to depend upon explicit or implicit threats of punishment. The only
beneficiaries of that approach have been a new cohort of campus
conservative activists, who thrive on the excitement and attention of
being portrayed as First Amendment martyrs.

College administrators simply haven't given sufficient thought to creative
alternatives, even though recurring speech-code controversies have created
opportunities to promote the holy grail of undergraduate education:
enhanced skills in listening, reasoning, gathering and weighing evidence,
considering the aims and feelings of others, and understanding core
components of citizenship, like the responsibility to protect and promote
constitutional freedoms.

Administrators looking for new approaches have several good examples to
emulate, most arising out of an earlier era of speech-code development.
The columnist Nat Hentoff described one possibility in a 1991 Washington
Post article about the response of four black women at Arizona State
University to a racially offensive flyer posted on a residence-hall door.
Instead of seeking to invoke ASU's speech code, the women told the
occupants why they objected to the flyer (which was promptly taken down).
Then, with the support of ASU administrators, they helped organize a
series of campus forums and discussions, as well as a residence-hall
program on African-American history. Lively correspondence continued in
the campus newspaper, culminating in a letter to the editor ("names
withheld upon request") that read: "We would like to extend our sincerest
and deepest apologies to anyone and everyone who was offended by the
tasteless flyer that was displayed on our front door. ... We did not
realize the hurt that would come from this flyer. We now know that we
caused great distress among many different people, and we would like again
to apologize."

Similar outcomes elsewhere aren't guaranteed. Without proper leadership
from college deans and presidents, intensely emotional issues can turn
into shouting matches rather than thoughtful dialogue. At a minimum,
however, offending students can be challenged to become First Amendment
practitioners and active participants in a serious discussion, instead of
First Amendment martyrs. And offended students can be encouraged and
assisted in employing a broad range of strategies  holding open forums,
conducting lawful demonstrations or vigils, or simply issuing invitations
to public debates  that will help them acquire skills in challenging
rather than censoring expression they don't like. Some schools have
endorsed this approachprotecting "the right to think the unthinkable,
discuss the unmentionable, and challenge the unchallengeable"in published
guidelines, like the Yale University Policy on Freedom of Expression
(written by the late C. Vann Woodward, one of America's most distinguished

In his 1929 essay "The Aims of Education," Alfred North Whitehead wrote
that "the very intellectual revolution which has ever stirred humanity
into greatness has been a passionate protest against inert ideas. Then,
alas, with pathetic ignorance of human psychology, it has proceeded by
some educational scheme to bind humanity afresh with inert ideas of its
own fashioning." A better summary of the speech-code phenomenon would be
hard to find. The ideals that gave life to the civil-rights movement arose
out of an intense clash of ideologies and convictions. A whole new
vocabulary of justice was created in the process. That vocabulary can't be
frozen in amber. Each generation should be encouraged to develop the
skills to contribute to it. Doing so requires an atmosphere of freedom  an
atmosphere in which fundamental values are questioned, tested,
reformulated, and revitalized, not turned into stale dogma.

Gary Pavela is director of judicial programs at the University of Maryland
at College Park and author of Questions and Answers on College Student
Suicide: A Law and Policy Perspective (College Administration
Publications, 2006).
Section: The Chronicle Review
Volume 53, Issue 15, Page B14

Copyright  2006 by The Chronicle of Higher Education

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