One More Result of Racial Politics on Campus
By Eli Lehrer

Free speech no longer exists on American college campuses. A comprehensive survey conducted by the Foundation for Individual Rights in Education (FIRE) makes it clear: America's great universities are now officially committed to punishing students who express ideas that depart from Leftist orthodoxy. "College administrators have decided to ban just about any thought they don't like," says Emmett Hogan,

FIRE's survey data, available online at speechcodes.org after March 18, shows that three quarters of America's well-known universities--ranging from the Ivy League to respected commuter schools--significantly restrict student speech. (See adjoining chart.) Under the plain language of many campus speech codes, talking about differences between races and sexes can result in disciplinary action against a student. At public universities, that is a violation of the U.S. Constitution. At private universities there ought to be an outcry from students, professors, alumni, and trustees against these official restrictions on what students can and cannot say.

It hasn't always been this way: During the 1980s, free speech crusaders in America's universities thought briefly they had beaten back campus censorship. Successful lawsuits against the public universities of Michigan and Wisconsin, as well as California's private Stanford University, ended formal speech codes on public college campuses. But now so-called harassment codes have replaced speech codes in most places, and these new rules are in some ways worse.

While speech codes banned students from using narrowly delineated racial and sexual epithets, the "harassment" policies that exist on most American college campuses are so vague they can be interpreted to mean virtually anything. The University of North Carolina-Chapel Hill prohibits behavior that "destroys the environment of tolerance and mutual respect." Princeton bans "unwanted sexual attention that makes a person feel uncomfortable." Cornell University, along with many other schools, defines "leering" as a form of harassment. Many of these codes are hidden deep in university policy books and operate without most students being made aware of them. They serve to chill free expression just the same.

Moreover, these policies are applied subjectively. The conduct of San Diego State University speech code enforcer Antoinette Jones is typical. Shortly after 9/11, student Zewdalem Kebede approached a group of Arab students in the university library after he heard them praising the terrorist attacks. He got into a heated debate with the students and was eventually charged by Jones with violating the university's hazing policy. Ultimately, Jones sent Kebede a warning letter but took no formal disciplinary action. When TAE called her, Jones refused to comment, citing a university policy that bars employees from speaking to the press. SDSU spokesman Jason Foster, however, says no such policy exists.

Evenly applied standards requiring courtesy on campus might have a place at some educational institutions. But modern speech codes apply only to particular types of speech offensive to the Left. And it is mostly white students that they single out. Speech code proponents who spoke with TAE were honest about favoring a racial double standard, on the grounds that history and emotion leave non-whites especially vulnerable to insult. "There has to be a different standard," argues Stanford Law Professor Tom Grey, who defended that university's speech code before it was overturned.

Speech-restriction proponents like Grey argue that the new style "harassment" codes are actually mandated by federal law that requires universities to avoid a "pervasively hostile environment." But Grey, though a tenured professor at one of the nation's best law schools, seems not to understand what even first-year law students learn: Federal harassment laws and regulations apply only to employer-employee relationships, not to life generally. A male student who makes a crude sexual comment about a female classmate has behaved boorishly, but hasn't violated any law. And even in workplaces, employers don't have a legal obligation to take disciplinary action against employees who make "hostile" remarks to their peers. It is supervisory relationships that the federal law is primarily concerned with policing.

Colleges have no obligation to crack down on individual students for gender-related comments. Nor are they under any legal obligation on the racial front. No American court has ever upheld a right never to be offended.

How did speech codes become so pervasive in our supposed cradles of open inquiry? Experts point to two trends: the rise of 1960s radicals to positions of power on college campuses, and an influx of academically underprepared minority students as a result of affirmative action.

As the rest of the country turned rightward in the late 1970s and '80s, many radicals clustered on campuses. Meanwhile, ill prepared minorities were being pulled into universities in ever greater numbers. Thanks to racial preferences, many of them were promoted to a higher echelon of college than their achievements merited, and they struggled as a result. Many banded together defensively in racial affinity groups, which in turn sparked campus frictions. Rather than confronting low achievement and racial identity politics head-on, administrators found it easier to simply ban as "racist" any politically inconvenient thoughts and arguments.

The ironic result, notes Harvey Silverglate, a Boston civil liberties attorney who co-founded FIRE: "You had a generation that was talking about free speech all of the time. And then when they got into positions of power, their first response was to restrict it." The influx of minority students, Silverglate argues, provided a justification for censorship.

"With the rise of minority groups on college campuses there was something of an increase in intolerance," agrees Vanderbilt professor Carol Swain, a black critic of affirmative action. University administrators, she says "tried to keep a lid on things and create an environment where minority students wouldn't have their feelings hurt." Swain doubts the formal repeal of speech codes would even have much effect at this point. "The institutions don't need speech codes any more," she says. "Those who think the wrong way will just be censored by their peers. There are some issues you just don't discuss."

There is no evidence that minority students fare any better at schools which have speech codes. Nor is there much being said on campus that's particularly inflammatory in the first place. Grey, the Stanford speech codes defender, admits that racial and sexual harassment aren't major problems at any college he knows of.

Speech codes make immensely patronizing assumptions about minority and female students: that they are so emotionally fragile that a simple insult will disrupt their ability to get a quality education. Students capable of overcoming broken families, awful schools, and chronic neighborhood violence are assumed to be at risk of failing in their educational endeavors if peers make rude remarks. These condescending "protections" offered by college administrators are unnecessary.

Some types of campus restrictions on speech may be defensible. Private institutions that make it clear their educational programs emphasize leftish values (such as Pennsylvania's Swarthmore College) shouldn't be prevented from carrying this out for students who want it. Pervasively religious colleges (like Yeshiva University), likewise, would lose their essential character if students were allowed to undermine the principles of the institutions' faith.

In the main, however, college speech codes stand on shaky legal ground. Those at public universities are plainly un-Constitutional. And private schools that maintain speech codes while advertising themselves as places devoted to free and open inquiry could face civil suits for breach of contract.

Working with a bevy of public interest legal groups around the country, FIRE plans to launch a challenge to campus speech codes in every one of the U.S.'s judicial circuits. The effort will begin with a soon-to-be announced lawsuit against a university in the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the U.S. Virgin Islands), and then expand across the country. "Our hope is if we lose some of them in the district courts, we can appeal them to the courts of appeals, where we will win," says FIRE head Thor Halvorssen. If two circuit courts of appeals disagree on the Constitutionality of speech codes, a case could go to the Supreme Court to set a binding legal precedent for the entire country.

Created by radicals demanding heightened racial sensitivity, campus speech codes turn out to be far more insidious and destructive than any residual racism they might quell. "Speech codes have to go," summarizes Halvorssen. "Students need to be free."

--Eli Lehrer is a TAE senior editor.