Tolling the death knell for speech codes

Thursday, October 16, 2003

One of the most dispiriting effects of the plague of political correctness on college campuses has been administrators imposing speech codes and codes of conduct that punish students for verbal or written expressions that might offend their classmates on issues of religion, national or ethnic origin, disability, race, gender or sexual orientation.

College presidents, provosts and deans act as if they have discovered a constitutional right for students not to be offended. I have heard from students at so-called elite universities as well as community colleges about how they censor themselves on campus for fear of being targeted as racist, sexist or homophobic, or otherwise being found guilty of fostering a hostile learning environment.

Under suspicion are such politically incorrect questions as whether Christian students should be allowed to have a campus club, or why the progeny of upper-class black parents should be entitled to affirmative action when whites from poverty-level families are not. In this censoring climate, large piles of dissenting student newspapers have been stolen before they’re read, and even burned, at many college campuses.

After two such bonfires of conservative student newspapers a few years ago, an administrator at Cornell University told me that those protests were simply acts of free expression.

At last, a landmark affirmation of First Amendment freedoms on college campuses has come from the U.S. Department of Education’s Office for Civil Rights. This department provides colleges and universities that receive federal funds (and that includes some private universities) with regulations against discrimination on the basis of race, gender or other categories.

On Aug. 8, Gerald A. Reynolds, the OCR’s assistant secretary, sent a letter to college and university officials nationwide that the Department of Education’s anti-discrimination regulations “are not intended to restrict the exercise of any expressive activities protected under the U.S. Constitution … OCR’s regulations and policies do not require or prescribe speech, conduct or harassment codes that impair the exercise of rights protected under the First Amendment.”

This does not mean, Reynolds emphasized, that the OCR will weaken its prohibitions of “racial, disability and sexual harassment of students.”

However, charges of discriminatory speech or other actions “must include something beyond the mere expression of views, words, symbols or thoughts that some person finds offensive. … The conduct must also be considered sufficiently serious to deny or limit a student’s ability to participate in or benefit from the educational program.”

By contrast, among Reynolds’ predecessors in the OCR, there were commissars of political correctness who stunted free speech on college campuses. This suppression of the very spirit of free inquiry and dissent — the core of learning how to learn — has been continuing at all too many colleges and universities.

In constant combat against this infectious educational malpractice is FIRE (the Foundation for Individual Rights in Education). Based in Philadelphia, it defends the free-speech rights of students and professors across the political and ideological spectrum. FIRE’s board, of which I am a member, also cuts across all such categories.

Reacting to Reynolds’s ringing of the First Amendment liberty bell, FIRE co-founder Harvey Silverglate, a Boston civil liberties and civil rights lawyer, said: “This letter to college officials will certainly put to rest any claims by future academic administrators that OCR or federal law required them to pass speech codes or punish offensive, hurtful or rude speech, as is now the routine. … This makes it clear that the viewpoint expressed in a remark, no matter how offensive or challenging, can never, by itself, constitute harassment.”

Reynolds put it plainly: “All actions taken by (the Department of Education’s) Office of Civil Rights must comport with First Amendment principles.”

In my last conversation with Supreme Court Justice William Brennan, he said of the rampant college speech codes: “They ought to just abolish all of them.” And now, Gerald A. Reynolds, assistant secretary, Office of Civil Rights, Department of Education, has done just that.

Congratulations!

Published with the permission of Nat Hentoff. Originally posted on The Washington Times Web site on Oct. 13. Hentoff is a contributing editor to Editor & Publisher and also writes for The Village Voice in New York.

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