HARASSMENT, PARODY,
By Harvey A.
Silverglate[1]
Presented as a
talk to the
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Of all the students at
Once settled in
Despite his apology, events quickly spiraled. Two other incidents of racially offensive speech soon occurred, and a black students’ group declared that Harvard Law faced a “crisis” of “racial harassment” and “intimidation.” In the wake of these accusations, the law school dean, Robert Clark, and one of his assistant deans announced seemingly unprecedented and profound policy changes affecting two courses taught by senior faculty members whom students had cited for offensive speech over the course of discussing the Camara controversy. The dean’s office decreed that the course, taught by Prof. Charles Nesson, would for the rest of the semester be taught by an assistant dean and another faculty member, with Nesson sitting in as an observer. The dean further ordered that a class taught by another professor, David Rosenberg, would be tape-recorded so that affronted students would not have to be physically present during class. Dean Clark appointed a new committee on diversity and charged it with developing ways to promote respect on campus – a dark suggestion that the law school might soon implement a racial harassment policy. As a result of Camara’s mistake and Harvard Law’s less-than-principled institutional response, Harvard Law was caught up in the greatest threat to free speech it had seen in a decade.
***
The second character in Harvard’s racial harassment saga was one Matthias Scholl, a Polish first-year law student. As public controversy mounted over Camara’s remarks, Scholl sent an anonymous email to the black student who had alerted the administrator of the course-notes website to Camara’s posting: “We are at the Harvard Law School, a free private community where any member wishing to use the word ‘nigger’ in any form should not be prevented from doing so…Shame on you! You have done a great disservice both to HLS and to the African-American community.” Himself in an interracial marriage, Scholl, a self-described libertarian, apparently knew enough about political correctness to both dislike and fear it. Emboldened by what he presumed to be his anonymity, he got right into the face of Camara’s would-be censors: “If you, as a race, want to prove that you do not deserve to be called by that word, work hard and you will be recognized…As a result of your complaint I have actually begun using the ‘nigger’ word more often than before the incident.”
To make the argument that only blacks at Harvard Law had to bear such offense, someone the next day distributed a flier in the mailboxes of seventy law students. It had a swastika and crude insults of Jews, and it stated, at the bottom: “I bet [the administration] will respond to this leaflet, because Jews, unlike blacks, are a politically and economically favored group at the university.”
The author of this latter missive remained unknown. Scholl, however, was
no master of electronic disguise, and students tracked him down as the author of
the offending e-mail. When
discovered, he tried to spin his comments as intended to promote free speech: “I
would use the word to show people I have the right to use it, but I don’t
condone it. I’m not a racist. My
wife is Asian, my best friend is from
When Scholl apologized to Harcourt’s class, he was accompanied by
Professor Charles Nesson, a senior law professor who founded Harvard’s
innovative
What followed was certainly not classically pedagogic. Offended students
in Nesson’s class soon met with Dean of the Juris Doctor Program Todd D. Rakoff,
Dean of Students Suzanne Richardson, and several professors. Harcourt told The Crimson: “There will be no mock trial. This is not a pedagogic moment.” The Harvard Black Law Students
Association, a branch of the national BLSA (whose membership, according to its
National Constitution, is limited to blacks), soon wrote an open letter to Deans
Clark and Rakoff, calling upon the administration to secure “civility, decency,
and respect for minorities,” demanding “No more racial harassment. No more intimidation.” The BLSA accused the
To justify their demands, student groups at American universities usually assemble an endless list of often-real insults and outrages suffered at the hands of institutions and its members. The BLSA mentioned the events of March 7: Camara’s note on the student website, and “angry, intimidating emails from other students, sometimes anonymously” (quoting the content of what Scholl had written), to students who had complained. It described an incident of March 13 in which a worker at the Harvard Law School Legal Aid Bureau had mistaken a first-year black student for a client. It noted that one Harvard Law School student had suggested, in response to the anti-Semitic flier, that law students in the section in which the flier had been distributed, and members of the BLSA “interested in clearing themselves” should volunteer for fingerprinting.
It then went on to list two incidents involving professors. It referred to Professor Nesson’s offer,
in Harcourt’s class, to hold a mock trial of Scholl with Nesson as defense
counsel: “Students responded with
outrage that a professor would choose to take sides, even if only in the
interest of the ‘adversarial process,’ and make a public spectacle of such a
sensitive issue.” It raised a new
case, also, claiming that on March 13, “Professor David Rosenberg told his torts
class: ‘Marxists, feminists, and the Blacks’ had contributed nothing to
torts.”[3] It informed
the administration that despite being confronted, “
In response to these incidents, the BLSA issued seven “demands,” among
them “appropriate administrative action” against the offending students and a
strategic plan by the Legal Aid Bureau to “remedy” its “diversity
problems.” They further demanded
the creation of “an Office of Multicultural Affairs…solely dedicated to dealing
with issues of racial harassment and providing diversity training.” They demanded that the
Dean Clark’s response was twofold.
First, two substitutes, one of whom was
Dean Clark further announced that faculty workshops during the summer of 2002 would “help improve pedagogy regarding sensitive cleavage lines in our society.” He had assigned Deans Rakoff and Richardson “to develop and implement a responsive training program for incoming students and faculty,” and he had created a “Committee on Healthy Diversity” which would “investigate and report on ways to promote respectful and constructive behavior in our diverse environment.” This committee would guide the new “training” of students and faculty, and would advise “further changes in policy and practice.” One such change, he suggested, might be that “the faculty should develop a racial harassment policy.” The dean’s initiatives thus seem to envision both censorship of disfavored views and affirmative inculcation of officially sanctioned views.
Students might interpret such administrative rhetoric in different
ways. For those
who knew
* * * *
On
In pornography, women get fucked. Now, women get "fucked" in the workplace, too, where we do "women's work" for "women's wages." …We get assigned to this inferior work track because we are identifiable by our sex…We are raped at work or en route to work because of our sex, because we are cunts.
After much dispute among the student editors of the Harvard Law Review, Frug's piece was published in that prestigious journal after her death as a memorial, despite the fact that those opposed to its publication insisted the draft was a poorly written, vulgar political treatise.
One year after Frug’s death, the Review distributed its limited-circulation annual parody issue, the Harvard Law Revue. The Revue typically consists of parodies of articles published in the Review the previous year. The 1992 Revue included a scathing parody of Frug's work. The article was cruelly attributed to "Mary Doe, Rigor-Mortis Professor of Law.”
While references to Frug's violent death were offensive and tasteless, meriting rightful criticism, the piece as a whole was an unstinting criticism of the Law Review's decision to publish Frug's unfinished draft. It seemed more an unabashed satire of radical feminist scholarship than a mockery of Frug's death. The Revue’s Mary Doe wrote:
Men f**k wom*n every day. The male reader may think: "Mary Doe, you're talking about it as if it's a bad thing." But I don't mean "f**k" in the carnal sense. This is f**king scholarship, and my unique voice expresses itself through words such as f**k to convey images and meanings that other words just couldn't convey. If you don't like it, well, f**k you.
Most of the
The authors of the parody penned a public recantation. The editors originally responsible for publishing Frug’s actual “Manifesto” now apologized for not protesting the satire. Dean Clark himself added another “open letter,” declaring that “The piece offends all standards of decency.…The President of the Review has indicated that steps are being taken to address underlying problems and attitudes…and I shall consider what further steps may be appropriate.”
Dean Clark initially declared that the School would not punish the
offense and that “I agree with those who think that the best response to
offensive speech is not to curtail it forcibly, but to condemn it, and explain
why it is wrong.” Dean Clark’s ethical and – in terms of academic freedom –
essential response did not, alas, satisfy those calling for vengeance, who
eventually intimidated him into submission. Angered by what they saw as the dean's
indifference to the incident, nine
Kennedy asked the
Kennedy's letter earned the support of a self-appointed Revue Action Committee. Professor Alan Dershowitz, one of the very few public faculty voices favoring freedom of expression in this imbroglio, wrote a syndicated column in which he sharply criticized the effort to bring disciplinary charges against the students. Professor Laurence Tribe – a leading constitutional law expert who had gained national attention by questioning Judge Robert Bork's commitment to liberty – publicly replied, writing that “the mutilation of Professor Frug's memory go[es] well beyond speech in any meaningful sense.”
Four weeks after Kennedy brought his charges, the Ad Board ruled that it could not punish the authors of the parody because no “law school rule imposes limits on the content of publications by students that would be applicable here” or empowers the Administrative Board to deal with such “harassment.” The Ad Board's decision, rather than settling the issue on behalf of free speech as a matter of academic freedom, became the catalyst for consideration of adoption of a speech code. One year later, Dean Clark appointed a faculty committee to consider adoption of sexual harassment “guidelines.”
Dershowitz himself accepted a place on the Guidelines Committee and argued that, given the context, he would prefer to have clear, narrow rules restricting speech rather than unspecified, vague, and unwritten “common law” standards or understandings. Only three professors expressed outright opposition.
The Law School faculty passed one guideline that banned, among other things, any “speech or conduct of a sexual nature…that is unwelcome…abusive…or has the purpose or effect of unreasonably interfering with an individual's work or academic performance or creating an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment at Harvard Law School.” The school added a “savings clause” to the policy, exempting from punishment speech that would be protected by the First Amendment. This clause, however, was an illusory protection, designed to encourage the misconception that students at Harvard Law had the same free speech rights as students at state universities. As Tribe himself had written in his leading textbook on the U.S. Constitution, savings clauses are highly problematic because they deter conduct that is actually permitted: “a law whose reach into protected spheres is limited only by the background assurance that unconstitutional applications will eventually be set aside is a law that will deter too much that is in fact protected.”[4] Tribe nonetheless voted for the guideline.
The Frug parody almost certainly would have been in violation of this guideline. It was “speech...of a sexual nature” that was surely “unwelcome” by many, considered “abusive” by its detractors, and, given the diatribes it produced, manifestly had the “effect of...creating an intimidating, demeaning, degrading, hostile or otherwise seriously offensive ... educational environment.” Even if the authors had survived the gauntlet of the guideline with the savings clause, however, they would have encountered a second new guideline that forbade “speech or combination of conduct and speech that would be viewed by a reasonable person as physically intimidating…and that has the purpose or effect of unreasonably interfering with an individual’s work or of creating an intimidating, demeaning, degrading, hostile or otherwise seriously offensive working or educational environment at Harvard Law School.” This guideline not only lacked even an illusory savings clause, but explicitly stated that “though appropriately broad on a university campus, the right of free expression does not encompass a right to engage in abusive or intimidating conduct.” Harvard’s policy, like its debate over the incident to which the policy responded, betrayed a frightening confusion of speech and conduct. Recall Tribe’s argument that “the mutilation of Professor Frug's memory” went “well beyond speech in any meaningful sense.” Recall further Kennedy’s charge that the authors had delivered “a direct threat of personal violence."
No one should have been surprised by the calls to impose restrictions at Harvard Law on race-themed speech. The response to the Frug parody invited them. Indeed, in a December 1995 column in the Harvard Law Record, a first-year law student criticized the faculty for adopting a policy “to protect students from offensive behavior or dialogue on the basis of sex, yet failing to adopt a comparable policy on the basis of race.” The author gave an example of what he considered actionable “racial harassment.” A film recently shown in his criminal law class had portrayed a debate between a prosecutor and a defense lawyer about an encounter between a black college student and a white police officer. The officer used a racial epithet. “I became...offended as the film progressed,” complained the student columnist. Because the film was shown without giving students “proper warning” of its offensive content, the student asserted, it constituted racial harassment.
Dean Clark promised to study the BSLA demands during the summer, which
came and went, without any further action. With the precedent of the Sexual
Harassment Guidelines available in their arsenal, opponents of the creation of a
similar set of guidelines targeting race were better prepared this time.
Considerable pressure from both inside and outside the
This is not promising for a school that is training lawyers, judges and leaders. The influence of a law school racial harassment speech code, however, will n,ot end at Harvard’s gates, nor even be limited to the academy. The academic Marxist theories of the 1960s and 70s, positing the view that true equality could be achieved only by the unequal allocation of speech rights to create a “level playing field,” found their way into college and university “offensive speech codes” in the 1980s. These codes, though later declared unconstitutional on public campuses,[5] nonetheless gave birth to our modern-day federal “harassment” regulations under the guise of “civil rights” laws, covering workplace and campus speech (as well as conduct) that creates a “hostile environment” – as if a campus of higher education could accomplish its educational and truth-seeking goals while simultaneously catering to those seeking and expecting an innocuously inoffensive educational experience. Now our universities have virtually all adopted similarly worded “harassment” codes, arguing, speciously but effectively, that they are obligated by federal law to limit such speech on campus. This symbiotic relationship between academia and federal regulators has produced an atmosphere of profound censorship and fear on our campuses, which will end only when the courts make clear that these concepts, like the emperor without clothes, are simply back-door approaches to restricting otherwise protected speech, a censorship power that government does not enjoy and that educational institutions should not, at their peril, seek to exercise.
* * * *
The appearance of censorship on public and private college and university campuses, in the guise of “harassment codes,” is just the most recent in a series of efforts that censors have undertaken over the decades to curtail speech deemed offensive by some. These efforts to censor have been met with varying degrees of success except when challenged, and even then some of the challenges have failed in courts where judges simply were fooled by the “harassment” label and did not penetrate to the heart of the matter to see that what was being censored were dissident views, often couched in harsh terms, sometimes couched in the language of humor or parody.
Here are just a few of the recent and most illustrative cases from around the country, from private and public campuses:
In the fall
of 2001,
During the
2004-2005 school year, the University of Colorado at Boulder investigated an essay
in which Professor Ward Churchill likened Americans killed at the
In the week following 9/11, Kenneth Hearlson, an associate professor of political science at Orange Coast College in California, was removed from his classroom for nearly four months for an investigation into a question (why there was an asymmetrical response by Arabs to the attacks on the World Trade Center compared to attacks on Israel) the professor had posed to his class.[8]
In the fall of 2004 at the University of Massachusetts - Amherst, a group of student leaders threw a party at which they parodied the racism accusations lodged after a hotly contested student election in which one of the candidates had been unfairly branded racist. The party-goers took photographs of themselves posing in front of a cartoon depicting the candidate dressed in Ku Klux Klan garb, with a moronic expression on his face. Students offended by the obviously sardonic pictures put pressure on the school’s administration, which in turn forced the student government leaders to resign their positions.[9]
In March
2004, administrators at
In February
2005, Dean of Students at Northeastern Illinois University Michael Kelly
threatened to bring charges against a student political group that planned to
host a bake sale satirizing affirmative action. At the event, the student group
planned to sell baked goods at lower prices to non-white, non-male purchasers, a
perhaps ham-handed but fairly transparent comment on the allegedly un-level
playing field created by affirmative action. Two months later, after
corresponding with the Foundation for Individual Rights in Education, the
university decided to allow the students to host the bake sale without prior restraint on
their actions.[11]
* * *
As is obvious from these examples, campus administrators have attacked speech, on and from both the left and the right, precisely when it performs the function that speech performs as its most vital and urgent calling – dissent from prevailing views and attitudes. The censorship of such speech has been undertaken because administrators operate under cover of the claim that since the censored words are not simply “offensive speech,” but instead reach the level of “harassment,” the precedential case law from the United States Supreme Court and from various state courts of last resort simply does not apply.
Consider
for a moment the earlier discussion of the adoption of Sexual Harassment
Guidelines at
The Supreme Court Unanimously Rebukes Oblique Assaults on Speech.
The “hurtful” parody battle.
The United States Supreme Court has on at least three occasions met head-on and rejected, unanimously, attempts to change, through misleading language and classifications, the rules of the game in free speech cases.
Consider
the case of Hustler Magazine v.
Falwell, 485
The reason the high court granted review became evident when its opinion was released. It was clear that under traditional First Amendment law in the privacy and libel areas, Falwell’s suit could not succeed. Parody is protected almost absolutely, and Falwell was clearly a public figure in any event. But Falwell had formulated his third claim – intentional infliction of emotional distress – in the guise of a traditional tort, claiming personal injury as a result of Flynt’s reckless and hurtful conduct. If this oblique approach worked, recovery for hurtful parodies would have become more likely as the parody actually succeeded in humiliating its target. In other words, successful parody would be sanctioned. The Court’s opinion took on the challenge at its core:
The freedom to speak one’s mind is not only an aspect of individual liberty – and thus a good unto itself – but also is essential to the common quest for truth and the vitality of society as a whole…. The First Amendment recognized no such thing as a “false” idea. As Justice Holmes wrote, “when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas…..
[Falwell] argued, however, that a different standard should apply in this case [than in a traditional libel case] because here the State seeks to prevent not reputational damage, but the severe emotional distress suffered by the person who is the subject of an offensive publication….In [Falwell’s] view…, so long as the utterance was intended to inflict emotional distress, was outrageous, and did in fact inflict serious emotional distress, it is of no constitutional import whether the statement was a fact or an opinion or whether it was true or false. It is the intent to cause injury that is the gravamen of the tort, and the State’s interest in preventing emotional harm simply outweighs whatever interest a speaker may have in speech of this type….
In Garrison v. Louisiana, 379 U.S. 64 (1964), we held that even when a speaker or writer is motivated by hatred or ill-will, his expression was protected by the First Amendment…. Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be subjected to damages awards without any showing that their work falsely defamed its subject…. The appeal of the political cartoon or caricature is often based on exploitation of unfortunate physical traits or politically embarrassing events – an exploitation often calculated to injure the feelings of the subject of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and one-sided.
The Court went on to rule that Falwell’s case had to be analyzed not as a tort case focusing on the outrageousness of the writer’s conduct and on the egregiousness of the target’s psychic injury, but rather had to be viewed under traditional First Amendment standards applicable to libel suits. Since the jury had found that the parody was obviously not meant to depict literal truth concerning the incestuous drunken orgy, there was no libel here, and hence Falwell’s suit had to fail. The implications of this ruling for codes prohibiting discomforting speech under the guise of “hostile educational environment” analysis are obvious.
The "pornography as civil rights
violation" battle[13]
In 1985, Judge Frank Easterbook of the U.S. Court of Appeals for the
Seventh Circuit wrote the court's opinion in American Booksellers Association Inc. v. Hudnut, 771
F.2d 323 (7th Cir. 1985). The city of
In language that seems directly to address the drafters of campus codes, the court concluded that a free society lets individuals freely choose, for themselves, those things that affect "how people see the world, their fellows, and social relations." Responding to the city's argument that pornography poisoned the atmosphere for women, the court rejected any "answer [that] leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us." The First Amendment, Judge Easterbrook and his colleagues ruled, permitted neither "thought control" nor an officially "approved view of women, of how they may react to sexual encounters [and] of how the sexes may relate to each other." Further, notions of "low value speech" and "fighting words" did not affect this case. The city did not consider the speech to be of low value, but rather it "believes this speech influences social relations and politics on a grand scale," and it had not banned all fighting words, but only those of a particular ideology and viewpoint, a selectivity that itself violated the First Amendment.
The city of
The St. Patrick's Day
Parade as a "public accommodation."
More recently, the Supreme Court dealt with another clever but, in the
end, futile oblique attack on free speech by using the legal umbrella of
purported protection of civil rights. The South Boston Allied War Veterans, led
by one John J. Hurley, had been authorized by the city of
The Massachusetts Superior Court and the Supreme Judicial Court of Massachusetts had sided with GLIB, which had argued that a public parade such as the St. Patrick's Day Parade should be considered a "public accommodation," much as a hotel or restaurant, and that denial of GLIB's application to march under its banner violated a state law prohibiting discrimination on account of sexual orientation in places of public accommodation.
In a unanimous opinion written by Justice David Souter, the U.S. Supreme
Court in Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 115 S.Ct. 2338 (1995), reversed the Supreme
Judicial Court. Justice Souter wrote that the parade was clearly an expressive
event, not just a means "for a group of people to march from here to there...to
reach a destination." Souter concluded that the Veterans Council had an absolute
right to have its own parade, which it organized and underwrote, reflect its
chosen message. Souter cited one decision after another from the civil rights
struggles of the 60s and 70s, in which Dr. Martin Luther King, Jr. and his
allies fought for the right to hold peaceful marches to promote their political
and social views. Souter noted that the First Amendment protects a variety of
expressive activities, including saluting a flag or refusing to do so, wearing
an armband to protest the Vietnam war, marching in uniform and displaying the
swastika, and other such expressions. Hurley, 115
S.Ct. at 2345. Souter agreed that the
[T]he law today prohibits discrimination on the basis of race, color, religious creed, national origin, sex, sexual orientation..., deafness, blindness or any physical or mental disability or ancestry in the admission of any person to, or treatment in any place of public accommodation, resort or amusement. Provisions like these are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments. (Hurley, 115 S.Ct. at 2346).
But Justice Souter goes on to point
out that basing a demand to limit the Veterans Council's First Amendment rights,
in the name of equality of access to public accommodations, is to try to wring
more out of the civil rights laws than the First Amendment allows. "In the case
before us, however," wrote Justice Souter for the Court, "the Massachusetts law
has been applied in a peculiar way....Since every participating unit [in the
parade] affects the message conveyed by the private organizers, the state
courts' application of the statute produced an order essentially requiring
petitioners to alter the expressive content of their parade." Hence, "the
communication produced by [the Veterans Council] would be shaped by all those
protected by the law who wished to join in with some expressive demonstration of
their own.....[T]his use of the State's power violates the fundamental rule of
protection under the First Amendment, that a speaker has the autonomy to choose
the content of his own message." (Hurley, 115
Justice Souter then went on to talk in terms seemingly aimed directly at writers and enforcers of campus speech codes:
[T]he council clearly decided to exclude a message it did not like from the communication it chose to make, and that is enough to invoke its right as a private speaker to shape its expression by speaking on one subject while silent on another. The message it disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly articulate, a contingent marching behind the organization's banner would at least bear witness to the fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would suggest their view that people of their sexual orientations have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down to the choice of a speaker not to propound a particular point of view, and that choice is presumed to lie beyond the government's power to control. (Hurley, 115 S.Ct. at 2348)
The Court went out of its way to voice its support for the
civil rights legislation enacted by the City of
On its face, the object of the law is to ensure by statute for gays and lesbians desiring to make use of public accommodations what the old common law promised to any member of the public wanting a meal at the inn, that accepting the usual terms of service, they will not be turned away merely on the proprietor's exercise of personal preference.
However, Justice Souter went on to warn against the attempted use of civil rights statutes in situations where they would operate by restricting First Amendment rights:
When the law is applied to expressive activity in the way it was done here, its apparent object is simply to require speakers to modify the content of their expression to whatever extent beneficiaries of the law choose to alter it with messages of their own. (Hurley, 115 S.Ct. at 2350)
The Court concluded by seeking to bring some perspective on why it is that the First Amendment must trump purported civil rights/equal access concerns when they appear to clash:
Our holding today rests not on any particular view about the Council's message but on the Nation's commitment to protect freedom of speech. Disapproval of a private speaker's statement does not legitimize use of the Commonwealth's power to compel the speaker to alter the message by including one more acceptable to others. (Hurley, 115 S.Ct. At 2351)
* * * *
The utter perversity of the approach all too commonly adopted on college and university campuses today – including public institutions that are bound by the First Amendment, not to mention state constitutional free speech provisions that are often more expansive than their federal counterpart – is seen strikingly clearly by a case that arose in the spring and summer of 2005 on the campus of William Paterson University in New Jersey. The university convicted a student employee of discrimination and harassment for describing homosexuality as a “perversion” in a private response to a professor’s unsolicited announcement of a university event that promoted a normative view of lesbian sexuality.
The heart
of the matter appears on the third page of the New Jersey Attorney General’s
letter to the Director of Legal and Public Advocacy of The Foundation for
Individual Rights in Education (“
You further
assert that the University violated [the student’s] free speech rights. As an
employee of the University, [the student] is required to comply with the Interim State of New
Jersey Policy Prohibiting Discrimination, Harassment or Hostile Environments in
the Workplace. As stated previously, the policy provides that it is a
violation to make remarks that are “derogatory or demeaning” to members of
protected groups. As [University] President Speert noted in his memorandum dated
It is, of course, remarkable that an official in a state attorney general’s office would make the statement that a provision (whether statutory or regulatory) of an asserted non-discrimination policy, trumps a constitutional provision, much less a provision as fundamental as the First Amendment. However, in many legal and political circles today, any speech which is seen as somehow unwelcome by certain designated groups – generally denominated “historically disadvantaged groups” – or by the deans and other academic administrators who have undertaken the task of making members of such groups comfortable, free speech principles must take a back seat to social engineering. This is, in my view, an insult not only to the fundamental constitutional rights at stake, but also to the dignity, equality, self-respect, and ultimately the liberty of all those who dwell in our nation.
How far can
this pernicious trend go before our courts finally take the matter in hand and
follow the lead of the U.S. Supreme Court in the Falwell, Hudnut,
and Hurley
cases? Perhaps the most frightening example with which I’m personally familiar
involves the case of Prof. George Fletcher of the
In a 1999
class at
The
suggestion that one of the victims wanted to thank her attacker is both
preposterous and revealing. Again, it
In a letter
to the dean, I noted that “the notion…that the exam ‘
At some point the courts are going to have to tell college and university administrators and general counsel what the then-dean of the Columbia Law School finally understood after much back-and-forth discussion and argument: When someone in the campus community utters words and ideas that some find offensive but which under no stretch of the imagination constitute a real threat or otherwise fall into a traditionally prohibited category of speech, then there is not only nothing to prosecute, but there is nothing to investigate. These are not, or at least should not be, difficult cases.
[1] Harvey A. Silverglate
(www.HarveySilverglate.com) is a criminal defense and
civil liberties attorney; of counsel to the Boston firm of Good & Cormier;
co-author (with Alan Charles Kors) of The Shadow University: The Betrayal of Liberty on America’s
Campuses (paperback edition, HarperPerennial, 1999); co-author (with Josh
Gewolb) of
[2] Due to time constraints, the actual remarks delivered orally at the conference will be a truncated version of this text.
[3] Prof. Rosenberg later explained in a conversation with the author that his statement meant simply that post-modern legal theorists in the economic, gender, and race arenas had in fact contributed nothing to the development of law, including the field of torts that Prof. Rosenberg was teaching at the time.
[4] Laurence Tribe, American Constitutional Law (Foundation Press, 2d edition, 1988), p. 1031. Emphasis in original.
[5] See, The UWM Post, Inc., et
al. v. Board of Regents of the
[6] For materials regarding
Professor Berthold’s matter, see http://www.thefire.org/index.php/case/47.html (accessed
[7] For materials regarding
Professor Churchill’s matter, see http://www.thefire.org/index.php/case/667.html (accessed
[8] For materials regarding
Professor Hearlson’s matter, see http://www.thefire.org/index.php/case/681.html (accessed
[9] For materials regarding this
incident at the
[10] For materials regarding this
incident at
[11] For materials regarding this
incident at
[12] The Court’s opinion was written by Chief Justice Rehnquist and was signed by seven Justices, with Justice White concurring in the judgment and Justice Kennedy not participating. There was no dissent.
[13] Much of this discussion is
taken from Kors and Silverglate, The Shadow University, at
191-2. The reader of Chapter 8 of the book will see the larger context in which
this case was decided. It is also enormously useful to refer to one of the early
seminal works in this area of the law and the political forces that have sought
to tear down First Amendment protections in the name of some asserted higher
good, namely Donald Downs, The New Politics of
Pornography (University of Chicago Press, 1989). See also
[14] Hudnut
v. American Booksellers Association, Inc., 475
[15] Peter C. Harvey, letter to
Greg Lukianoff, July15, 2005. Available online at http://www.thefire.org/pdfs/ad466e8b2d8a3cc2d57b2d903c9ff321.pdf (accessed
[16] As quoted in Harvey A.
Silverglate, letter to Dean David Leebron,
[17] Harvey A.
Silverglate, letter to Dean Leebron,