One College Campus's Attempt to Limit Free Speech
FEBRUARY 01, 1999 by JON SANDERS
Jon Sanders is a research associate for the Pope Center for Higher Education Policy, Research Triangle Park, North Carolina, and editor of the center’s journal on higher education, Clarion.
The plaque is proudly posted at the front entrance to Bascom Hall on the campus of the University of Wisconsin at Madison. It memorializes the eloquent defense of academic freedom made by the university’s Board of Regents in 1894 in exonerating Richard T. Ely, an economics professor accused of teaching socialism and other “dangerous” ideas.
“Whatever may be the limitations which trammel inquiry elsewhere,” the plaque proclaims, “we believe the great University of Wisconsin should encourage that continual and fearless sifting and winnowing by which alone the truth can be found.”
Donna Shalala walked by that plaque countless times when she served as the university’s chancellor from 1988 to 1993, the year she became Bill Clinton’s secretary of Health and Human Services. But she paid no attention to it. Her ideal campus of sensitive minds had no place for the plaque’s dangerous idea.
Under Shalala’s administration, and counter to the school’s heritage, Wisconsin suffered severe limitations on inquiry in the form of speech codes for faculty members and students. The student speech code that went into effect in 1989 was one of the first standards on “hate speech” in the nation. It prohibited students from uttering slurs or epithets based on a person’s race, gender, sexual orientation, religion, disability, or ethnicity. In 1991 a federal judge struck it down as unconstitutional. The faculty speech code, however, has faced no such court challenge.
The speech codes were part of several politically correct campus initiatives designed to make minority students feel more welcome on campus. Other initiatives included requiring students to take ethnic-studies courses, designing orientation programs to increase awareness of racial and ethnic diversity, setting enrollment goals for black, Hispanic, and American Indian students, and urging that the ROTC program be banned from campus until the military stopped discriminating against homosexuals.
Speech Further Restricted
Wisconsin’s faculty speech code was originally established in 1981, but Shalala considered it insufficient to protect minorities from being offended in the classrooms. She asked the faculty senate to pass a revised code that further restricted faculty speech, which it did in 1989.
The enhanced code has trammeled speech in Wisconsin’s classrooms for nearly a decade. It forbids faculty members from slurring students according to their gender, race, ethnicity, and so on, but it also punishes the use of teaching techniques that make “the instructional setting hostile or intimidating, or demeaning” to students according to their “group.” If a professor invokes a theory in class that offends a particular group, he violates the code, probably without even realizing it. Under the code, however, the offense is in being offensive—whether intended or not.
Wisconsin’s revised faculty speech code quickly became a wellspring of consternation for the teachers. Although no faculty members were ever formally investigated and disciplined for violating the code, several underwent grueling informal investigations for alleged violations about which they were told very little. The Kafkaesque investigations made it patently clear on campus that Wisconsin tolerated no breach, however slight, of the PC ethic.
In 1990, Richard Long, an art professor, was investigated by the Affirmative Action Office after two graduate students accused him of being anti-Semitic, racist, sexist, and homophobic. Although formal charges were never brought and he was never officially informed of his situation, Long underwent a six-month investigation before the matter was dropped for lack of evidence. “I never received anything resembling due process,” he wrote in 1995 in a letter to the Wisconsin State Journal.
In 1992 Lester Hunt, a philosophy professor, was investigated after a student accused him of making racist jokes and comments. Like Long, Hunt was neither told of the charges against him nor given an opportunity to confront his accuser. “I would not want my worst enemy to go through what I went through,” he told The Daily Cardinal, Wisconsin’s online student newspaper.
In 1995, Robert Eric Frykenberg, a history professor, was accused of making disparaging comments to female graduate students. During the nine-month investigation, Frykenberg was never told which university rule he had allegedly violated. Finally, after he retained a lawyer and threatened to sue the university, the investigation was dropped and the university agreed to pay his legal bill. Frykenberg retired not long afterward.
Other teachers, understandably unwilling to risk the problems faced by their colleagues, voluntarily excised from their lectures anything that could be construed as offensive. The fierceness in investigating supposed violators frightened them, which was exactly the intent behind the code, said Stanley G. Payne, a professor of history at Wisconsin. “This helps to guarantee that no one will very seriously question any P.C. proposition,” he told The Chronicle of Higher Education. “[The code] doesn’t need to be invoked to police discussion in the classroom.”
By this declension, “fearless sifting and winnowing” on the Madison campus became fearful shifting and whimpering. The code turned the faculty lounge into a Damocletian feast.
The Last Straw
The Frykenberg case, however, proved to be the final straw for some Wisconsin professors. In 1996 Payne formed the Faculty Committee on Academic Freedom and Rights (FCAFR). Well-known academics were brought to campus to denounce the code. In 1996, for example, Harvard University Law Professor Alan Dershowitz, known to many Americans for serving on the team of attorneys who defended O.J. Simpson, called the faculty speech code “abominable” and urged the capacity crowd in attendance to defeat it, saying the university would make national headlines by repealing it without being forced to do so by the courts. In 1997 Professor Glen C. Loury of Boston University argued that any legislation restricting speech is wrong. “Our job as faculty members is to be provocative and challenging,” Loury told the Wisconsin crowd. “You’re not there to make students comfortable, you’re there to break through conventional ways of thinking.”
Meanwhile, Hunt and FCAFR member Donald A. Downs, a professor of political science, shamed the University Committee into taking another look at the code, charging that it infringed free speech and academic freedom. The charge struck at the heart of the matter, pitting Shalala’s legacy against the university’s. In May 1997 the University Committee formed a panel of ten faculty members, four academic staff members, and three students to investigate the code.
The panel, the Ad Hoc Committee on Prohibited Harassment Legislation, was as congenial as a coalition of Middle East countries. Among the members who favored the Shalala code were Ted Finman, an emeritus professor of law who wrote the original speech code; Evelyn Howell, a professor of landscape architecture who had served as chairman of the University Committee when it selected the panel members; Phillip R. Certain, dean of the College of Letters and Science; and Stanlie M. James, an associate professor of Afro-American and women’s studies. Among those seeking to overturn the code were Downs, journalism professor Robert E. Drechsel (the panel chairman), and the three student members.
Early last October, the so-called liberals on the panel succeeded in getting enough of their conservative counterparts to agree to send a compromise revision of the code, which would scale back the Shalala revisions, to the faculty senate. The new revision would penalize professors who use “an epithet or a comment concerning a specific student that clearly derogates and debases the student on the basis of the student’s gender, race, religion, ethnicity, sexual orientation, or disability” or who utter such comments without “a reasonable pedagogical justification for using the teaching technique in question.”
The revision would add a preamble discussing the university’s legacy of academic freedom and include examples of teaching techniques that would and would not be protected. Protected speech would include an instructor’s assigning a “pertinent novel that expresses racist ideas or contains a racial epithet” or asserting that “the intellectual capacity of men for scientific analysis is superior to that of women.” Prohibited speech would include an instructor’s referring to Africans transported to the United States in slave trades as “niggers” or responding to a female student’s rebuttal of his assertion of women’s inferior scientific intelligence with “See! Your stupid female comments just prove my point.” The faculty senate recommended adoption of the revision late last year.
The faculty senate also received a report from a stubborn minority comprising Downs, Drechsel, all three student members, and two others on the committee. That report would narrow the speech code further than the majority recommendation, penalizing professors only for using slurs expressly for the purpose of harming a student.
A split in such a committee is unusual, and it has set the stage for a potentially raucous faculty senate meeting. It is fitting that the fight end there. The issue is essentially whose idea of academic freedom will rule, Shalala’s or the 1894 regents’. Essentially, but not exactly. The compromise revision, which likely will be adopted, represents only a step back from the PC precipice to which Shalala brought the university. The minority report recommends a narrower speech code, but as the student editorial staff of The Daily Cardinal opined, “The committee must understand that any new speech code—no matter how well written—is still a speech code.” Neither allows inquiry as open as it was before 1981.
As that statement shows, it is the students, the supposed beneficiaries of the code, who are most vociferous in trying to end it. More so than the faculty and administration, they seem to understand the importance of free, even offensive speech. In fact, they appear to be less insulted by ill-advised faculty speech than by the idea that such speech would harm them. “Are they saying I can’t stand up for myself?” asked one student on the panel, Amy Kasper, in The Chronicle of Higher Education. “Am I being wrapped in a security blanket here, and I’ll go out in the real world and find there isn’t one?”
The student panel members should be of particular interest to those of the PC mindset. They are a white woman, an Asian woman, and a gay man. All consider the code—and the attitude behind it—“demeaning.” For unlike the Wisconsin teacher who argued that the code is needed so students “don’t get insulted or assaulted by a professor,” Wisconsin students of all stripes know that words, even those uttered by professors, are neither sticks nor stones.