Phi Beta Cons

The Right take on higher education.

Encouraging News?


Both the Chronicle of Higher Education and the American Council of Trustees and Alumni (ACTA) are reporting that the American Association of University Professors is pledging to work with ACTA to eliminate speech codes. In the midst of an otherwise-contentious debate with National Association of Scholars executive director Peter Wood, AAUP President Carey Nelson responded to a request from ACTA’s Anne Neal to find and work in areas of common ground by saying “I want to knock out speech codes.”

I’m encouraged … I think.  A few thoughts come to mind.

First, formal opposition to speech codes is nothing new for the AAUP. In 1992, the AAUP’s “Committee A on Academic Freedom and Tenure” adopted a policy statement against speech codes, and the AAUP’s Council approved this statement in 1994.

In fact, you will search long and hard before you find any consequential academic organization that actually supports speech codes. Even universities that have speech codes publicly oppose speech codes. The standard response to court challenges is something along the lines of: “This university is committed to free speech and open inquiry, but this inquiry must occur in an atmosphere free of illegal harassment. Our policy does not prohibit free speech and is instead required by law to protect students from harassment.”

The combination of formal, public opposition to speech codes and persistent litigation has morphed many codes into something that more closely resembles standard restrictions against workplace harassment. In other words, students engaged in the marketplace of ideas are subjected to rules similar to those regulating, for example, interactions between a lawyer and his or her assistant in a private law firm. These rules are designed — through the use of vague prohibitions against “offensive environments” — to give administrators maximum leeway in dealing with complaints, yet they aren’t loaded down with the laugh-out-loud academic doublespeak that characterized the “classic” university speech code (my favorite old-school speech-code prohibition: “acts of intolerance will not be tolerated”).

It’s time to move from the abstract to the concrete. Every academic organization of consequence should clearly articulate that there is but one standard for peer-to-peer harassment, and it is the standard set by the Supreme Court. As the good folks at FIRE stated when evaluating UCLA’s sexual-harassment policy:

To understand what is wrong with this policy, it is necessary to know how the United States Supreme Court has defined peer-on-peer sexual harassment in the educational environment, since only speech that falls within that definition may be prohibited consistent with the First Amendment. In Davis v. Monroe County Board of Education, 526 U.S. 629 (1999), the Supreme Court addressed the issue of student-on-student harassment and held that speech, to fall outside the bounds of protected speech, must be “so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.” 

As I type this post, I’m working on yet another round of speech-code challenges, and there will no doubt be opportunities for friend-of-the-court briefs. Has the already-broad free-speech coalition just grown larger?


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