Unlearning Liberty - Greg Lukianoff

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Department of Education Muddies the Waters

      The story of harassment codes on campus is largely one of universities brazenly ignoring the right to free speech and the law concerning harassment as they pass speech codes that, when challenged, are almost laughed out of court. Since 1989, there have been nearly two dozen court cases involving campus speech codes.53 Almost all of them have challenged a substantially overbroad harassment code, and virtually all of these challenges have been successful.

      So there was good reason to hope that the days of speech codes would be numbered, but in April 2011, the Office for Civil Rights of the Department of Education appeared to step back from the strong statement it had made in 2003 in favor of rational harassment codes and free speech. The agency issued a nineteen-page letter dictating to colleges the procedures they must follow in sexual harassment and assault cases.54 Among its many troubling points is a requirement that sexual misconduct cases be adjudicated using the lowest possible standard of evidence allowable in court (which will be discussed at length in Chapter 6). Moreover, the letter made no mention of the First Amendment or free speech, ignoring the way that vague and broad definitions of harassment have been used to justify campus speech codes and censorship. By mandating many procedural steps that colleges must take to respond to allegations of sexual harassment—while failing to mandate a consistent, limited, and constitutional definition of harassment—OCR has effectively encouraged campus officials to punish speech they simply dislike.

      Along with a remarkably broad coalition of groups—including the Tully Center for Free Speech at Syracuse University, the National Coalition Against Censorship, the National Association of Scholars, the Alliance Defense Fund Center for Academic Freedom, Feminists for Free Expression, Woodhull Sexual Freedom Alliance, the American Booksellers Foundation for Free Expression, Accuracy in Academia, and the American Council of Trustees and Alumni—FIRE wrote to OCR in January 2012 requesting that it publicly affirm the Davis standard as the controlling definition for harassment on campus.55 I also published an article in the Washington Post the same day that we mailed the letter, explaining:

       By simply following the Supreme Court’s guidance, the OCR would assure that serious harassment is punished on campus while free speech is robustly protected. In one move, OCR could rid campuses of a substantial portion of all speech codes…. Most important, by recognizing the Davis standard, the OCR would send a message that free speech and free minds are essential to—not incompatible with—the development of creative, critical and innovative thinkers on our nation’s campuses.56

      Thus far, we have received no response from OCR. Of course, OCR can enforce regulations, but it cannot overrule the First Amendment. While the agency’s new letter may embolden universities to enforce their speech codes, I’m confident that any attempt to do so will be consistently shot down by the courts.

      Campus speech codes do, of course, have their defenders. When forced to concede that the codes do not meet First Amendment standards, these defenders often use the same rationalization: “What’s the big deal? Those speech codes are never enforced!” As you have seen already, that assertion is wrong. These codes are enforced, often against unambiguously protected speech.

      But let’s play the game as if it were true. What is the harm of speech codes if they are merely “on the books”? Plenty. The very existence of these codes poses serious problems. First, they create a “chilling effect”: if people have any reason to fear that they might be punished for offering an opinion, most people will refrain from doing so. This creates a campus atmosphere in which some students won’t talk about important issues, while others share their opinions only around likeminded people. The result is polarization and a failure to develop a deeper understanding of controversial issues.

      Speech codes are also harmful in and of themselves, because they miseducate students about free speech, their rights, the rights of others, and what it means to live in a pluralistic democracy. Some scholars, including Robert Post, dean of Yale Law School, see education’s role in serving the proper functioning of democracy as the primary reason for the existence of academic freedom and view the academy as a place to instill an understanding of democratic values.57 It is therefore inexcusable that institutions of higher education, through their unconstitutional speech codes, are teaching students the exact opposite of the lessons they are supposed to be learning about democracy, pluralism, and expression. In other words, by propagating speech codes, universities are lying to their students about what their rights are and misinforming them about how speech relates to the functioning of democracies, thus undermining the very reason for academic freedom.

      So what lesson have campus speech codes given to a generation or more of students? That censoring certain viewpoints is both constitutionally and morally correct. Ask students today if they believe in free speech, and I suspect most would answer “yes.” But if you dug deeper, you would discover that many students have been so badly misinformed about what it means to live in a free society that they accept selective censorship as a fact of life. They have never learned how crucial hearing a multitude of opinions is to our entire intellectual system. Making the most of free speech is a habit and a discipline that must be taught, and speech codes short-circuit that process.

      As I mentioned in the introduction, the venerable Association of American Colleges and Universities unveiled a massive study in 2010 called Engaging Diverse Viewpoints.58 The study asked a sample set of 24,000 students about their feelings and views concerning diverse viewpoints on campus. One question asked whether the students thought it was “safe to hold unpopular views on campus.” Think about how this statement is worded. It does not ask if students “feel confident that they can express views that are unpopular on campus,” but rather whether it is “safe” to merely “hold” them on campus. The question seems like a whitewash, designed to garner an inaccurately positive response that would allow the AACU to say, “All is fine on campus.” Even those who would never make an unpopular argument on campus wouldn’t go so far as to say they wouldn’t feel “safe” merely believing one, right? Actually, they would. Among the college seniors in the survey sample, only 30.3 percent answered that they strongly agreed that “It is safe to hold unpopular views on campus.”59

      Even more alarmingly, the study showed that students’ sense of the safety of expressing unpopular views steadily declines from freshman year (starting at 40.3 percent) to senior year.60 College seems to be the place where bad ideas about free speech go to get even worse.

      But the students were downright optimistic compared to the 9,000 “campus professionals” surveyed, including faculty, student affairs personnel, and academic administrators. Only 18.8 percent strongly agreed that it was safe to have unpopular views on campus.61 Faculty members, who are often the longest-serving members of the college community and presumably know it best, scored the lowest of any group—a miserable 16.7 percent!62

      While it still might strike some readers as unlikely that anything could stop students—especially undergraduates—from expressing their opinions (at all times and in all ways), the fact that the current generation shies away from meaningful debate has been a much-discussed phenomenon in academia for at least a decade now.

      My first run-in with the mystery of the “silent classroom” came when I read New York Times columnist Michiko Kakutani’s March 2002 article “Debate? Defense? Discussion? Oh, Don’t Go There!”63 Kakutani engaged several authors, social critics, university professors, and the dean of students at Princeton to get to the bottom of the “reluctance of today’s students to engage in impassioned debate.” Amanda Anderson, the author of The Way We Argue Now and an English professor at Johns Hopkins University, offered one of the more compelling theories on why students

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