What Washington Can Do to Protect Campus Free Speech

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What Washington Can Do to Protect Campus Free Speech

June 12, 1991 18 min read Download Report
Thomas L.

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834 Juie 12,1991 To WHAT WmGTON CAN DO PROTECI' CAMPUS FREE SPEECH INTRODUCI'ION when George Bush told the University of Michigan gradua ting class in May that "we find free speech under assault throughout the United States, in cluding on some college campuses,"1 he was highlighting what has become a national issue: dwmmma tion on college campuses against ideas and views that are judged to be not what is called politically correct Known widely by the abbreviation "PC political correctness is being institutionalized by a series of policies aimed at stifling opposition. These include: anti-speech codes; discriminatory faculty hiring and reten tion discriminatory admissions criteria withholding accreditation of some colleges on political grounds bans on non-PC speakers curricula revision.

At public universities, the First Amendment to the U.S. Constitution provides a basis for challenging the va lidity of anti-speech codes. In effect on nearly two-thirds of America's college campuses, the codes call for discipline 1 Quoted h Carol Innerst Political Correctness' Gets a Presidential Chiis- The Warhington rimes, May 6,1991, p. Al. against students f or uttering what the codes decree is politically incorrect speech. As the most concrete weapon in the PC arsenal, the codes should be assailed by federal officials as infringements on free speech and honest scholarship.

Ronald Reagan and his Secretary of E ducation, William J. Bennett, effec tively used the bully pulpit to focus public attention on timely and fun damental education issues. Bush along with his new Secretary of Education Lamar Alexander, and other national leaders are beginning to do the same .

The President used his May 4,1991, commencement address at Michigan to denounce the assault against free speech on Americas college campuses.

Federal officials should continue -to speak out against the indoctrination that has been replacing education in the halls of higher learning. Similarly, the Bush Administration should examine critically the federal legislative and regulatory role to determine whether political correctness indoctrination is funded and encouraged by the federal government. If it is, as even a cursory review of the matter suggests, then the Bush Administration carefully should craft a plan for getting the federal government out of this indoctrination busi ness. The.Department of Education should schedule public hearings and regular br i efings on the state of freedom on the nations campuses. Federal officials must decide, before it is too late, whether to retain Americas hard won tradition of individual liberty or surrender to intellectual bullies in the ivory tower THE FEDERAL ROLE Gove r nment at all levels has an enormous role in American higher educa tion, extending far beyond the actual provision of public colleges. Taxpayers spend more than $70 billion annually on higher education? Secretary of Education Alexander said in March that t h e federal government this year will pay out $18 billion alone in student grants and guaranteed student loans? In addition, the Defense Department and other federal agencies annually award hundreds of millions of dollars in research grants to colleges and universities a practice now under scrutiny because of reported abuses at Stanford Univer sity and other campuses.

The federal governments role in higher education is not limited to federal financial assistance. Even before a college can participate in fede ral assis tance programs, it must be credentialed by a nationally recognized accredit ing agency. The Secretary of Education, with the assistance of the National 2 Dinesh DSouza, The Visiioths in WeeC Fdes, April 1,1991, p. 81 3 U.S. Department of Educati o n, Statement by Lamar AlaandeG U.S. Secretary of Education, March 20,1991 p. 1 2 Advisory Committee on Accreditation and Institu$ional Eligibility, does the recognizing, or the accrediting, of these agencies enormously the kind of schools and the educatio n al environment in which Americans are trained. Example: the Middle States Association of Colleges and Schools has begun denying accreditation unless an institution has ap propriate diversity in its student body, faplty, and governing board with regard to race, ethnicity, gender, and age.

Speaking Out. The federal government also increasingly influences educa tion through commentary by federal officials and through federal publica tions. The National Endowment for the Humanities recently released a major re port on educational practices gone wrong and our best hopes for setting them right. When he was Education Secretary, Bennett often spoke out about higher education. Stanford Universitys 1988 decision, Bennett said to alter its Western Culture program was n ot a product of enlightened debate, but rather an unfortunate capitulation to a campaign of pressure politics and intimidati~n Secretary Alexander recently appointed Colum bia University historian Diane Ravitch as Assistant Secretary for educational resea rch and improvement. According to a Washington Post article, Ravitch will function as the departments resident intellectual, generating ideas on how to improve the nations schools.

The massive and multi-faceted federal role in higher education creates an o bligation for wise decisions about how this influence should be wielded.The federal government need not take sides in the contentious debates on cam pus. It is appropriate, however, for the federal government to ensure that no side in the debate is gagged . This pits the federal government against the prac titioners of political correctness. The challenge now is for Washington to find the appropriate means of combatting PC The criteria and standards imposed as conditions of accreditation can affect 4 The Com m ittee is authorized by Section 1205 of the Higher Education Act, as amended. See Pub.L 374 as amended; 20 U.S.C. section 1145 5 See Stephen Weber, Accrediting Bodies Must Require a Commitment to Diversity When Measuring a Colleges Quality, chronicle of Hi g her Education, October 10,1990, p. B1; Ed Wiley, More Institutions May Be Held Accountable for Diversity Through New Accrediting Emphasis, Black Issues in Higher Education, May 6 Lynne V. Cheney, mnical Machines (Washington, D.C National Endowment for the Humanities, 1990 7 U.S. Department of Education, Wlliam J. Bennett, U.S. Secretcuy of Education, why the West April 18,1988 8 See Kenneth Cooper, Columbia Professor in Line to Be Education Deputy, Washington Post, March 30 1991, p. A

6. For a brief expres sion of Ravitchs views, see her article Whats at Stake With Multicultural Education? in the February 15,1990, issue of Clipboard, a publication of the Center for Educational Innovation 10,1990, p. 1 p. 1 3 ANTI-SPEECH POLICIES Regulations now ban some for m of speech at a majority of American col leges and universities. According to the Carnegie Foundation for the Advan cement of Teaching, at least 60 percent of American colleges and universities already have adopted such policies and another 11 percent are considering doing so? Public and private institutions that establish educational policy trends already have thekcodes in place. These include the Universities of California, Michigan, and Wisconsin and private schools like Brown Dartmouth, and Stanford.

A nti-speech codes are typically classified as anti-harassment policies, os tensibly designed to shield designated groups from undesirable or insensi tive words. Writes George Mason University economist Walter Williams The ban isnt just on racial, sexual an d sex-choice slurs, but anything smack ing of criticism of a protected group.1o Nadine Strossen, president of the American Civil Liberties Union ACLU), criticizes the rationale supporting anti-speech policies as nothing less immodest than the abrogation of the traditional distinctions between speech and conduct and between state action and private action.

The codes typically take one of three forms 1) General prohibitions against speech that contributes to what is called a hostile educational environment 2) Prohibitions of categories of speech, such as anything that can be con strued as racist or sexist 3) Banning of words that fit the Supreme Courts category of fighting words, those ad hominem invectivesintended or likely to provoke violence on the spot.

Violations of these regulations can bring a range of punishments, from ad ministrative penalties to forced attendance at sensitivity seminars or even expulsion.

Such attacks on freedom of speech are as old as history and tyranny. As through history, todays anti-speech codes use criteria and terms whose mean ing keeps changing. Example: The principle of non-discrimination, enshrined in the Civil Rights Act of 1964 , was once considered progressive and its op ponents racist; today, public policies that require discrimination on the basis 9 Carnegie Foundation for the Advancement of Teaching, A Special Repott: CMIpus Life in Semh of Community (Princeton: Princeton Uni v ersity Press, 1990 10 Walter Williams, All the Vogue on Campus, The Washington Times, January 14,1991, p. D4 11 Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal? 1990 Duke Law Journal p. 492 4 of race are considered progressive. Exam ple: In the 196Os, support for racial ly segregated educational facilities was considered racist; today, opposition to minority-instigated segregation is racist.

Beliefs that do not fit into currently popular views of human relations or human nature are likewise prohibited. For example,the belief that children are best served by being raised in a heterosexual family is branded sexist or even homophobic.

Some commentators, even while criticizing censorship polici s, im licit1 defend the codes by calling the m regulations of hate speech or ramt speech.13 But many codes across America are written to advance a broader agenda s P Typical of the censorship policies are these examples The University of Connecticuts anti-speech code at one time prohibited inappropr iately directed laughter, anonymous notes, incon siderate jokes, and conspicuous exclusion of students from conversations.

A panel of administrators at the university found a female student guilty of posting a sign on her dormroom door that was allegedly o ffensive to homosexuals and ordered her to move off campus. After she threatened a federal lawsuit, the university revised its code. Now the University of Connec ticut claims to limit only face-to-face use of fighting words but defines this phrase far mor e broadly than has the Supreme Court to include terms wide ly recognized to be derogatory references to p ersonal characteristic The State University of New York at Buffalo law faculty unanimously approved a policy in 1987 warning that racist, sexist, homo p hobic and anti lesbian, ageist and ethnically derogatory statements, as well as other remarks based on prejudice and group stereotype, will generate swift, open condem nation by the faculty, wherever and however they occur.1s The statement typically, fail s to define these open-ended and subjective labels. Instead, the policy says that Fly entering law school each students absolute right to liberty of speech must also become tempered by the responsibility to promote equality and justice. Says University of M assachusetts sociologist Paul Hollander of this Buffalo policy: It would be interesting to know who will be authorized to define what constitutes equality and justice and just how 12 Strossen, op. cit pp. 44,488 l3 Op. cit p. 492 14 University of Connedic u t, Student Handbook (1990 p. 62 15 State University of New York at Buffalo, Faculty of Law and Jurisprudence, Faculty Statemenf Regarding Intellectual Fmedom, Tolerance, and hhibited Hamssment, October 1,1987 5 they are to be promoted. In any event, no to t alitarian could have put it bet ter.16 Left-libertarian columnist Nat Hentoff writes that this policy means that [tlhe First Amendment has been suspended by the law school faculty of a public univer~ity The University of Michigan also used a laundry list a pproach in 1988 in its Policy on Discrimination and Discriminaory Hmmment. This bans speech that stigmatizes or victimizes an individual on the basis of race, ethnicity religion, sex, sexual orientation, creed, national origin, ancestry, age, marital stat u s, handicap or Vietnam-era veteran status or that [clreates an in timidating, hostile, or demeaning environment for educational pursuits remains unclear why only Vietnam veterans merit special protection. In Sep tember 1988, a complaint was filed against a graduate student at Michigans School of Business Administration who read an allegedly homophobic limerick during a scheduled public-speaking exercise. The Universitys policy administrator compelled the student to apologize to that class, apologize to the university community thr ugh the campus newspaper, and attend a homosexual sensitivity class: That December, a complaint was filed against a graduate student in the School of Social Work claiming that he had, in a re search class, expressed the opinion th at homosexuality was abnormality that could be psychologically treated. A panel of niversity administrators u nanimously convicted him of sexual harassment.

In 1989, a psychology graduate student challenged the constitutionality of Michigans code. A federa l district court ruled in favor of the student and struck down the code as unconstitutionally vague. Wrote Judge Avern Cohn the free and unfettered interpla of competing views is essential to the institutions educational mission. The university replaced i t s unconstitu tional code with the Interim Policy on Discriminatory Conduct. This seem to bow to the court by stating that the frank and open discussion of social, cul tural, artistic, religious, scientific and political issues may be disturbing and even h u rtful for some individuals. The principle of free exchange and inquiry takes precedence as it is so fundamental to the educational enterprise. Yet the new policy, in what is a rebuff to the court, also prohibits verbal slurs, in vectives or epithets, refe r ring to an individuals race, ethnicity, religion, sex sexual orientation, creed, national origin, ancestry, age, or handicap, made with the purpose of injuring the person to whom the words or actions are 918 It d d 16 Quoted in Charles Sykes, The Hollow M e n: Politics and Gmuption in American Higher Education Washington, D.C Regnery Gateway, 1990 p. 54 17 Nat Hentoff, A Law School Flunks the First Amendment, Washingion Post, April 9,1988, p. A25 18 See Doe v. Univenity of Michigan, 721 F.Supp. 852,856 (E.D. Mich. 1989 19 Op. cit. p. 865 u) Op. cit 21 Op. cit. p. 863 6 directed and that are not made as a part of a discussion or exchange of an idea, ideology or philosophy Emory University defines disdnatory harassment as including speech directed against any p e rson or group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, handicap, or veterans status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeanhqtimidating, or hostile environment for that person or group of persons. This very general approach fails to indi cate how the purpose or effect of speech on the environment will be measured Brown University bans harassment on the basis of such characteristics as race, religion, gender, handicap, economic status, sexual orientation, eth nicity, national origin, or on the basis of position or function. It defines as harassment the subjection of another person, group or class of persons to in appropriate, abusive, threatening, or d e meaning actions which may include inappropriate verbal attention or name calling. The Brown policy goes beyond many other anti-speech codes by including this warning: If the pur pose of your language is to harass, harm, cause psychological stress or make s omeone the focus of your joke, you are engaged in a harassing man ner. It may be intentional or unintentional and still constitute harassment.23 In March, Brown became what may be the first university in America to expel a student for breaching a speech c o de.The student had yelled epithets while intoxicated Catholic University of Americas Undergraduate Student Government amended the undergraduate code of student conduct last November to prohibit even carelessly directing demeaning expressio ns based on rac e gender, religion, sexual orientation, ethnicity, nationality, disability or age toward an individual or group. The codes proponents in the universitys stu dent legislature do not indicate how to measure carelessness Stanford Universitys Fundamental Stand a rd, the basic code of con duct for students, states that students are expected to show both within and without the University such respect for order, morality, personal honor and I the rights of others as is demanded of good citizens. The school interpret s this as prohibiting discriminatory harassment such as personal vilification on the basis of listed characteristics intended to insult or stigmatize an in- dividual or a small group of individuals I 22 Emory University, Camp fife Handbook (199

91 p. 112 2 3 Brown Uniwrsity Office of Student Lite, Racism uf Bnnvn, August 1990. The University of Texas at Austin bans racial harassment, defined as communications that are intended to harass, intimidate, or humiliate a stu dent or students on account of race, co l or r national origin and that cause them to suffer severe emotional distress Smith Colleges Office of Student Affairs condemns a long list of ver bal taboos that grows [a s groups of people begin the process of realizing that they are oppressed. This list includes discrimination against the hand icapped, defined as ableism, or the oppression of the differently abled, by the temporarily abled; lookism, or the construction of a standard for beauty/attractiveness; and heterosexism, or the oppression of those of sexual orientation other than heterosexual which can take place by not ac knowledging their existence.

Many Questions. The examples above include no fewer than nineteen categories of forbidden speech, and raise many questions. For example, what is the d ifference between race, ethnicity, national origin, ancestry, color, and nationality? How can one know another persons position or function or their marital, economic, or veterans status so as to avoid any potentially insensi tive remarks, especially when some schools condemn even careless or unin tentional speech?

The spreading practice of universities censoring free speech has attracted the attention of the American Civil Liberties Union (ACLU which wisely has taken a strong position against it. Out of s tep with the national organiza tion, however, is the California affiliate of the ACLU, which has drafted a model anti-speech code. It would punish a student whose speech creates a hostile and intimidating environment which the speaker knows or reasonably s hould know will seriously and directly impede the educational opportunities of the individual or individuals to whom it is addressed.26 Free inquiry and the exchange of ideas were once the very essence of higher education. The spirit, if not the formal le t ter, of the First Amendment is respect for the expression of different opinions. Even those who support codes of academic censorship admit that unpopular speech and ideas should be allowed. In the Duke Law Journal, law professor Charles R. Laurence III wr i tes that it reinforces our societys commitment to the value of tolerance.n But anti-speech codes institutionalize intolerance 2 24 University of Texas at Austin, Policy Memorandum 4.120, August 1,1990, p. 1 25 See John Taylor, Are You Politically Correct, New Yo January 21,1991, p. 34 26 See Nat Hentoff, Battling the Speecb Police, Washington Post, October 27,1990, p. A25 27 Charles R. Laurence, 111, If He Hollers Let Him Go: Regulating Racist Speech on Campus, Duke Law Journal, June 1990, pp. 431,435-36 8 PART OF A LARGER PROBLEM The politically correct or PC movement punishes dissent many ways be sides speech codes. These include Selecting correct speakers for campus events or dis-inviting the incor rect speakers; Rigging admissions standards to create a c orrect statistical distribution of racial minorities in the student body Changing accreditation standards to force schools to adopt the correct quota policies for students and faculty Replacing traditional study of Western culture with the correct study o f non-Western and even anti-Western cultures and revolutionary move ments.

Each campus in the University of Massachusetts system, for example, must have a program of educational activities designed to enlighten faculty, ad ministrators, staff and students with. regard o...ways in which .the dominant society manifests and perpetuates racism. Pennsylvania State Universitys disciplinary manual ondemns America as a society deeply ingrained with bias and prejudice. The New York State Commissioner of Educations T ask Force on Minorities began a report by noting the intellectual and educational oppression that has characterized the culture and institutions of the United States and the European American world for centuries. This op pression has led to the miseducati on of all young people through a sys tematic bias toward European culture and its derivatives.30 2b This theme finds concrete expression in a remarkable array of contexts.

In spring 1990, the University of Northern Colorado invited Linda Chavez the former staff director of the U.S. Civil Rights Commission and later a senior official in the Reagan White House, to deliver its commencement ad dress. Chavez was later disinvited after it was discovered that, according to columnist John Leo: Chavezs views on two key issues were entirely too diverse for much of the student body: She opposes affirmative action and thinks Hispanic immigrants should learn English as quickly as possible. These 28 Chester E. Finn Jr The Campus: An Island of Repression in a Sea of Freed o m, Commentv, September 1989, pp. 17,19 29 Pennsylvania State University, Disciplincuy System Manual, March 1990, p. 49 30 A Cumalum of Inclusion, Report of the CodonersTask Force on Minorities: Equity and Excellence July 1989, p. iii 9 are politically inc orrect views on campus.31 It made no difference, apparent ly, that Chavez is Hispanic.

Forbidden List. At Wellesley College last year, a group of PC students tried to get Barbara Bush disinvited as commencement speaker. She was convicted, writes Boston Uni versity President John Silber, of being a loyal wife and loving mother, activities on the forbidden list for modem women and a bad example for the members of the graduating class of Wellesley.A2 In this case the PC students were not successful. Usually, h owever, they are.

PC proponents also manipulate admissions standards to favor groups deemed underrepresented. At the University of California at Berkeley black and Hispanic student applicants are up to twenty times as likely to be accepted for admission as +ian-American and white applicants who have the same academic test scores.

The PC attack on the curriculum seeks to replace the traditional study of what is called oppressive Western culture with a study of non-Western cul ture. At Mount Holyoke, the Uni versity of Wisconsin, Berkeley, Dartmouth Cleveland State, and other schools, students are required to study non Western cultures or to take ethnic-studies courses. They are not required to study Western civilization.34 Imposing Diversity. The PC movement now affects even decisions about accreditation. The Middle States Association of Colleges and Schools is the accrediting agency for educational institutions in New York, New Jersey, Pen nsylvania, Delaware, Maryland, and the District of Columbia. It has b e gun withholding accreditation unless an institution has appropriate diversity in its student body, f culty, and governing board with regard to race, ethnicity gender, and age?The Middle States Association has told Westminster Theological Seminary in Phila d elphia, for example, to appoint a woman trus tee or lose its accreditation. Westminster believes, on theological grounds that only men should be ordained and its constitution restricts trustee mem bership to the ordained. Middle States, in effect, is dema n ding that a private school choose between accreditation or free exercise of religion. To his credit, Education Secretary Alexander has criticized Middle States and is delaying reauthorization of the agency until it drops its diversity require ment 31 John Leo, The Academys New Ayatollahs, U.S. News and World Report, December 10,1990, p. 22 32 John Silber, Free Speech and the Academy, fie Intexollegiate Review, Fall 1990, p. 34 33 DSouza, op. cit p. 54 34 Op. cit p. 53 35 See Stephen Weiner, Accrediting Bod i es Must Require a Commitment to Diversity When Measuring a Colleges Quality, Clmnicle of Higher Educuhon, October 10,1990, p. B1; Wiley, More Institutions May Be Held Accountable for Diversity Through New Accrediting Emphasis, Black Issues in Higher Educa t ion, May 10,1990, p. 1 10 CONCLUSION THE FEDERAL RESPONSE There is only so much the federal government can or should do to affect policies on college campuses, particularly at private institutions. The federal government, of course, should investigate pos sible misuse of federal funds but this should be limited to the programs for which the money is targeted.

The federal government also should tighten discipline over its grant-making.

One well-intentioned legislative effort to reign in PC, the Collegiate Speech Protection Act of 1991 (H.R. 1330) was introduced in the House of Representatives on March 12,1991, by Henry Hyde, the Illinois Republican.

It would amend TitleVI of the Civil R ights Act of 1964 to-give students at private universities the right to challenge in federal court codes that punish speech.* The Hyde bill would abolish the crucial distinction between public and private jurisdictions by providing a cause of action for s t udents to sue private schools with restrictive speech policies. It proceeds from the view that the problem is a violation of individuals legal rights.The bill is unlikely to have much effect, as evidenced by the fact that only one anti-speech code has bee n eliminated through-litigation even though students at public schools can already sue under the Constitution. Its greatest fault is that it could spawn other lawsuits against private schools.

There are other, more appropriate ways that federal officials a nd the federal government can attack PC. Among them The Department of Education should schedule regional hearings to high light the debate over PC on campuses. An effective way to keep campuses from falling into ideologically-imposed conformity is to publ i cize current policies President Bush and Secretary Alexander should use their bully pulpits much as former Secretary Bennett did in the Reagan Administration. By call ing Chicagos schools the worst in the nation during the 1980s, Bennett ig nited debate a n d reforms that are shaking up that citys school system as well as countless other school districts anxious to avoid similar publicity. Bush and Alexander can educate the American public about the dangers of political correctness gagging free speech and th e competition of ideas Alexander can create a dirty dozen list of campuses that are the worst offenders in suppressing honest scholarship and freedom of speech. The chart listing the dozen should hang prominently in his office and be updated peri odically 36 Press Release, Hyde CriticizesTrend on College Campuses to Restrict Speech, Introduced Speech Protection Act, March 12,19

91. I 11 Department of Education officials should give monthly briefings on the state of freedom on the nations campuses The Depart ment of Education should examine its own policies and programs to determine which are fostering violations of freedom of speech on campus, as some of them most surely are. These programs then must be changed to tilt in favor of free speech.

Choosing a Pat h. Federal officials must decide which kind of educational environment the American people are subsidizing one of authoritative selection or the marketplace of ideas. Each path will have dramatically dif ferent effects on the young people spending several formative years of their lives there and, as a result, will have dramatically different results for the na tion. America should have a greater commitment to its children than to pro vide those who can afford it a chance to sue after the damage has been do ne.

America should have an educational environment that is as open and vital as possible.

Thomas L. Jipping, J.D.

Director Center for IA Democracy Free Congress Research Education Foundation This is the fifth in a series of studies analyzing the impact of federal policies on American culture aud cultural values 12


Thomas L.