by Dr. Mark H. Shapiro
Commentary of the Day - June 11, 2000: Academic Freedom vs. College Speech Codes.
In this week's Chronicle of Higher Education Daphne Patai, professor of Spanish and Portuguese at the University of Massachusetts at Amherst, writes of her experiences at a recent conference on academic freedom at the State University of New York at Albany. Patai, who served for 10 years as a professor of women's studies before becoming disenchanted with the direction in which modern feminist theory was progressing, noted that today's concerns about academic freedom focus mostly on assaults from outside the academy -- mainly the corporatization and privatization of the enterprise. At the same time, in Patai's view, encroachments from inside in the form of "speech codes" and "antiharassment policies" are still tolerated. She writes that she was attacked vigorously when she condemned "sexual harassment policies and other feminist inspired efforts to regulate academic discourse".
Patai is a board member of The Foundation for Individual Rights in Education, Inc. (FIRE), which has as its mission the defense of individual rights including the rights of free speech, legal equality, due process, religious liberty, and sanctity of conscience on American college and university campuses. While the board of FIRE includes several prominent conservatives, it also can boast of several well known civil libertarians. Since the IP considers himself one of the latter, he thought it might be interesting to take a look at the present status of college speech codes and harassment policies.
By way of background for readers who may not be familiar with the politics of academia, college speech codes were the subject of much attention in the early 1990's. The face of higher education had undergone a substantial transformation in the previous decade. Many more women and members of identifiable minority groups were enrolled in institutions of higher education that had long been dominated by white male faculty members and administrators. The speech codes mainly were well-intentioned attempts to avoid situations that might make these new participants in the academy feel uncomfortable. However, a few of the more egregious of these codes clearly were attempts by some of the newer voices in the academy to take the political heights and to suppress views that they abhorred.
Some of the worst of the speech codes proscribed a wide range of comments that might be viewed as offensive by one group or another. These codes often provided harsh penalties for the offender, who frequently had little opportunity to defend himself or herself in a fair setting. In a sense, the lack of due process built into many of these codes was a blessing in disguise. Aggrieved parties had little recourse but to take their cases to the courts. Fortunately, courts in the United States have taken a dim view of attempts to abridge freedom of speech, and most of the speech codes that were challenged in the courts were overturned.
However, restrictions on speech have reappeared in revised campus harassment codes. These harassment codes most often are aimed at sexual harassment, but may also proscribe acts of racial, ethnic or religious harassment. The problem, in Patai's view, occurs when these codes punish "verbal" acts as well as more direct acts of intimidation or harassment, since "verbal" acts are nothing more than speech.
When speech alone is involved the issues of rights and responsibilities can be complex. In the IP's view the role of the academy is not to make ideas safe for students, but rather to make students safe for ideas. Thus, any use of speech or harassment codes to suppress unorthodox or unpopular ideas, including ideas that may offend or make individuals uncomfortable, should be challenged at every stage. This does not mean that all speech is entitled to absolute protection. Courts in the United States generally have upheld laws that punish individuals for making threats of bodily harm or for inciting others to violence. Colleges and universities likewise have the right to punish such acts, not because of the content of the speech itself, but rather because such threats interfere with the rights of others to pursue unimpeded free inquiry. However, such proscriptions must be very narrowly drawn and applied with great caution. Merely, expressing an opinion about an individual or group -- however offensive that opinion may be -- is not sufficient grounds for discipline. Colleges and universities clearly should encourage civil behavior and should punish behavior that disrupts the academic process or threatens individuals with physical harm.
In the IP's opinion, students have no right to disrupt a class simply because they disagree with the professor's views. The do have the right to express their disagreements during class discussions and in their written work. Similarly, members of the academic community do not have the right to shout down a speaker because they disagree with his or her views, because doing so then interferes with the speakers rights. However they do have the right to disagree by non-disruptive means such as holding up signs or peaceful picketing. When controversial speakers are invited to a campus, they have a right to be heard. They should not, however, be shielded from challenging questions from those who may disagree with their stands.
Issues of sexual harassment are equally complex. Clearly policies are needed to ensure that the work of the academy takes place professionally, and that the right of individuals to be free from unwanted advances is protected. At the same time, these policies should not be so broad or vague that they can be used to discourage serious discourse on controversial topics. The success of any disciplinary proceeding based on these codes must hinge on behavior that is clearly discriminatory, harassing or threatening, rather than on the mere expression of opinion or on the vigorous expression of unorthodox points of view.
For further reading, the IP recommends the essay "Civility and Its Discontents" by Leslie Epstein and "The PC Speech Police" by Barbara Dority. And, of course, the Irascible Professor invites your comments on these issues.
© 2000 Dr. Mark H. Shapiro - All rights reserved.