Monday, April 30, 2007

Under FIRE: Campus Speech Regulations Once Again

Stanley Fish

Last week saw the end of a little drama that had been playing out on the campus of the University of Rhode Island for some months. On April 26 the student senate turned back a committee recommendation to “derecognize” the College Republicans because the group refused to apologize for one of its actions. What the College Republicans had done was invite applications for the “First Annual White Heterosexual Male Scholarship,” otherwise known by the acronym WHAM. Applicants were asked, first, to certify that they were indeed white, heterosexual, American and male and then to answer two questions: “In 100 words or less, what does being a White Heterosexual American Male mean to you? As a White Heterosexual American Male, what adversities have you had to deal with and overcome?”

Many of the 40 or so who sent in applications recognized the satirical intention (to ridicule and parody raced-based scholarships and other forms of campus affirmative action) of the obviously bogus scholarship and wrote in the same spirit. But the student senate was not amused, and in February the Student Organizations Advisory and Review Committee demanded that the College Republicans: A) not award the $100 scholarship, B) apologize in writing for having violated the anti-discrimination section of the senate’s bylaws, and C) seek permission from the senate before mounting any programs in the next 12 months. The group cheerfully agreed to A – why not? – and declined to comply with B and C.

In response the Advisory and Review Committee exercised the nuclear option and voted to derecognize the group, in spite of the fact that Robert Carothers, the university’s president, had declared on April 6 that it was unconstitutional to require the College Republicans to “make public statements which are not their own.” (The relevant First Amendment category is “compelled speech.”) Given Carothers’s unequivocal position, it was only a matter of time, and the time arrived last Thursday, before the Senate backed down, asking only that the College Republicans issue an explanation of the point they were trying to make. The group is reported to be satisfied with this condition, as well it might be, since it now has another (and mandated) opportunity to get its point of view out to the public.

There is nothing particularly interesting or edifying about this incident. One could accuse the College Republicans of bad taste and the Senate committee of overreacting and of failing to understand what the First Amendment protects (since Hustler v. Falwell, it protects political satire no matter how crude or offensive), but that is more or less par for the course in such matters.

What is interesting, however, is that at least part of the credit for the resolution of the controversy belongs to an outside agency, FIRE, the Foundation for Individual Rights in Education, a campus watchdog group founded by free speech activists Alan Kors and Harvey Silverglate, authors of “The Shadow University: The Betrayal of Liberty on America’s Campuses.” FIRE wrote one letter to the student senate president, and two letters to President Carothers. The second of those letters ended by reminding the president that “FIRE is prepared to use the full extent of its resources to see this matter through to a just and moral conclusion.”

Those resources include, in addition to a staff well-schooled in First Amendment law, the ability to command the microphones of Fox News and the pages of The New York Post. Last week, FIRE announced that, beginning immediately, it will have its own weekly column in the Post, titled Campus Watch. The first of the columns ran on April 24 and alerted Post readers to the situation at U.R.I.; two days later the student senate capitulated. Cause and effect in these matters is never simple, but there would seem to be some truth to FIRE’s boast, made in a press release the same day, that the senate acted in response to “pressure from the Foundation for Individual Rights in Education.”

In fact, if you check out FIRE’s Web site, you’ll find that literally scores of colleges and universities have felt that pressure. Time and again, FIRE reports a happy ending that was reached “Thanks to FIRE’s intervention.” Nor does FIRE wait for an actual incident before it intervenes. Independently of any complaint, FIRE issues assessments of campus speech codes and mission statements and often finds them in violation of First Amendment strictures. One report surveys all 16 schools in the University of North Carolina system and concludes that 13 of them “have at least one policy that both clearly and substantially restricts freedom of speech.” You can bet that the university’s administration is paying attention. A new feature on the FIRE Web site highlights “The Speech Code of the Month.” No college or university president will want his or her institution to be accorded that “honor.”

FIRE is not the only watchdog organization looking for what it deems bad behavior. One reason the Don Imus comment received such widespread and immediate attention was that Ryan Chiachiere, a researcher and writer, was watching and recording the show for the liberal group Media Matters for America. Soon a clip of the offending moment appeared on the group’s Web site and on YouTube. In little more than a week, Imus was off the air.

The difference between Media Matters for America and Fire is that while the former is a frankly political organization – dedicated, its home page says, to “correcting conservative misinformation” – the latter is dedicated to protecting the First Amendment rights of students and teachers no matter what their political affiliations. One sees itself in the business of improving the culture in the right (that is, left) direction; the other sees itself in the business of making sure that colleges and universities know what the law is and obey it.

Not everyone would accept this account of what FIRE stands for. In an essay in the April 20 issue of The Chronicle of Higher Education, John B. Gould, a lawyer and professor at George Mason University, criticized the organization for exaggerating the extent to which higher education is “under siege from a politically correct plague of hate-speech codes” and for being ideologically selective in its targets. What FIRE is really after, said Gould, is “liberal, academic censors.” Not so, replied FIRE, citing a number of left-leaning academics – including Sami al-Arian of the University of South Florida and Ward Churchill of the University of Colorado – to whose defense it has risen.

Much of the disagreement between Professor Gould and FIRE turns on the technical question of what does and does not amount to harassment. FIRE follows a 1999 Supreme Court decision (Davis v. Monroe County) in asserting that speech is harassing, as opposed to being merely offensive, if it is “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” Professor Gould’s threshold for deeming a form of speech harassing would be lower and would be tied to what he considers to be the prevailing norms of “civil society.” Students, he reports, arrive on campus “already believing that colleges should prohibit sexist speech,” and their view is in line with the 55 percent of those surveyed by the First Amendment Center who don’t think that the right of free speech allows people “to say things in public that might be offensive to racial groups.” By that standard – being offensive to racial groups – the College Republicans’ mock scholarship offer would be an appropriate candidate for regulation. In FIRE’s view, the degree of protection extended to an individual’s speech should not turn on public opinion or cultural norms, but on abstract legal categories that stand free of either.

What we see here is a tension (which I have noted in earlier columns) between a desire to have our laws and procedures reflect our sense of social justice and a resolution to adhere to first principles – “Congress shall make no law abridging freedom of speech” – no matter where obedience to their dictates may take us. Professor Gould looks around and finds that behavior once acceptable and unchallenged – the making of sexist and racist comments – has come to be regarded as objectionable and harmful, and he concludes that our enlightened views should be reflected in campus regulations. FIRE would no doubt respond that our present understanding of social justice and civility is temporary and revisable; to enshrine it in law would be to have the law bend to the received wisdom of the moment, which would mean that the law would no longer be a normative enterprise and would instead be a plaything of politics. (When the received wisdom of the moment changed, it would change too.) I have been on both sides of this divide, and at this point all I know is that it cannot be bridged.

** Stanley Fish is the Davidson-Kahn Distinguished University Professor and a professor of law at Florida International University, in Miami, and dean emeritus of the College of Liberal Arts and Sciences at the University of Illinois at Chicago. Mr. Fish has also taught at the University of California at Berkeley, Johns Hopkins and Duke University. He is the author of 10 books. **

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