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«INTRODUCTION Questions of how to deal with hate speech and other offensive expression on college and university campuses are one of the constants of ...»

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LAW AND FREE EXPRESSION:

INTERSECTIONAL ISSUES AND THE BALANCING OF RIGHTS AND RESPONSIBILITIES

February 19, 2007

Jonathan R. Alger1

Rutgers, The State University of New Jersey

INTRODUCTION

Questions of how to deal with hate speech and other offensive expression on college and

university campuses are one of the constants of higher education law and policy. The nature and content of what is considered hate speech or offensive expression may change over time and reflects larger societal and historical trends and issues, but the need to figure out how to maintain an educational environment that is conducive to learning is an ever-present challenge that requires continuing vigilance.

Issues of free expression go to the very heart of the educational mission, and college and university campuses have long been viewed as places where the most important and controversial issues of the time can and should be discussed and debated. The increasing diversity among students, faculty, and staff on our campuses has increased the pressure on our institutions to find ways to allow for the marketplace of ideas to flourish without making certain groups of people feel marginalized.

This outline will provide a brief overview of legal and policy issues related to the reaction to, and regulation of, hate speech and other offensive expression on campus. This outline will focus on some of the key current debates. Issues related to political and religious expression have been among the most significant flashpoints on campuses recently and therefore are a focus of much of the discussion.

Although this overview will focus on U.S. law and institutions, it is worth noting in this age of increasing globalization that colleges and universities around the world are also wrestling with these same issues. See, e.g., “British University Bars Muslim Group From Campus and Suspends Student Who Invited It,” The Chronicle of Higher Education: Academe Today, Sep. 23, 2005 (university ordered student union to rescind invitation to speaker from controversial Muslim organization with alleged links to terror); “Anti-Religion Speech Ban Protested,” Associated Press (Feb. 1, 2006) (discussing proposed legislation in Britain that would bar speech considered to incite religious hatred).

APPLICABLE LAW

When institutions attempt to address incidents of offensive speech on campus, two fundamental legal principles intersect and often seem to be in conflict: i.e., the rights of free expression and freedom from discrimination. Sustenance of a healthy and robust educational environment at the postsecondary level requires careful attention to both of these principles, which are briefly outlined below.

–  –  –

First Amendment Although the First Amendment to the U.S. Constitution is most often cited as the legal source of protection for free speech in higher education, it applies only to “state actions,” see In re Civil Rights Cases, 109 U.S. 3 (1993), and hence to the rights of individuals vis-à-vis public institutions. As discussed below, however, private institutions may be bound to provide similar protections under: (1) state law; (2) church-related regulations; or (3) other policies and contractual provisions that may have the force of law.

The First Amendment applies to a broad array of expression, including symbolic speech that can take many forms (such as artistic expression, flags, T-shirts, etc.). See, e.g., Tinker v. Des Moines School District, 393 U.S. 503 (1969) (students’ wearing of black armbands in school as symbol of opposition to Vietnam War was protected expression).

On the other hand, the U.S. Supreme Court has recently reiterated that not all conduct that is intended to express an idea constitutes protected expression. In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 126 S. Ct. 1297 (2006), the Court rejected the argument that the Solomon Amendment (requiring equal access for military recruiters on campus) regulates speech, and also held that the expressive nature of the conduct regulated by the statute (i.e., law school policies that forbade military recruiters from on-campus interviewing on the basis that the military’s policy on homosexuals violates the schools’ own anti-discrimination policies) does not bring that conduct within First Amendment protection.

[W]e rejected the view that ‘conduct can be labeled ‘speech’ whenever the person engaging in the conduct thereby intends to express an idea.’ Instead, we have extended First Amendment protection only to conduct that is inherently expressive. … The expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it. … If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it. (citations omitted) See id. at 1310-1311. Thus, one of the threshold questions in many instances of offensive behavior is whether the behavior constituted “speech” or “expression” protected by the First Amendment, or “conduct” that is not protected.

Students, faculty and staff at public institutions all enjoy First Amendment rights, of course, but in each case there are limitations on these rights. For example, under the First Amendment, protection for employees at public institutions is limited to speech on matters of “public concern.” See Connick v.





Myers, 461 U.S. 138 (1983). Speech that pertains only to issues of personal interest is not protected under the First Amendment. See id. Matters of public concern have been defined as those which can be “fairly considered as relating to any matter of political, social, or other concern to the community.” See id. If speech is determined to be on a matter of public concern, then a balancing test is applied as follows: is the interest of the public employee as a citizen in commenting on the matter outweighed by the interest of the state as an employer in promoting effective and efficient public service? See Pickering v. Board of Educ., 391 U.S. 563, 573 (1968); see also Waters v. Churchill, 511 U.S. 661 (1994). The question of what it means to “disrupt” effective and efficient service must also be considered within the specific context—i.e., in higher education, the nature and purpose of the environment (in fostering the discussion and debate of ideas, even those that are unpopular, controversial or offensive) is not the same as in other public sector settings. The mere expression of controversial or unpopular points of view, therefore, cannot be relied upon as a rationale for a public college or university in prohibiting or punishing such speech.

Academic Freedom

Academic freedom is a core principle that reflects and reinforces the very mission of higher education. It is not, however, coextensive with the First Amendment, as they serve different purposes.

Academic freedom protects the “marketplace of ideas” in the specific context of the educational environment, whereas the First Amendment protects speech on all sorts of issues in all sorts of contexts but is subject to various limitations for public policy reasons. For an excellent overview of academic freedom as a legal principle, see “Culture Wars and Freedom of Expression on Campus,” Lawrence White, National Association of College and University Attorneys 45th Annual Conference (June 2005).

Academic freedom has been enshrined in policy statements in varying degrees at virtually all colleges and universities—public and private alike. Academic freedom for faculty and students may be protected by a variety of means (e.g., in collective bargaining agreements, institutional policies, faculty and student handbooks, etc.) that are legally enforceable to varying degrees.

Faculty Rights and Responsibilities

Virtually all public and private colleges and universities provide some protection for academic freedom rights of faculty members. Many institutions have adopted the American Association of University Professors’ seminal 1940 Statement of Principles on Academic Freedom and Tenure, which

states in part as follows:

Institutions of higher education are conducted for the common good and not to further the interest of either the individual teacher or the institution as a whole. The common good depends upon the free search for truth and its free exposition.

Academic freedom is essential to these purposes and applies to both teaching and research.

Freedom in research is fundamental to the advancement of truth. Academic freedom in its teaching aspect is fundamental for the protection of the rights of the teacher in teaching and of the student to freedom in learning. It carries with it duties correlative with rights. … (a) Teachers are entitled to full freedom in research and in the publication of the results, subject to the adequate performance of their other academic duties; but research for pecuniary return should be based upon an understanding with the authorities of the institution.

(b) Teachers are entitled to freedom in the classroom in discussing their subject, but they should be careful not to introduce into their teaching controversial matter which has no relation to their subject. Limitations of academic freedom because of religious or other aims of the institution should be clearly stated in writing at the time of the appointment.

(c) College and university teachers are citizens, members of a learned profession, and officers of an educational institution. When they speak or write as citizens, they should be free from institutional censorship or discipline, but their special position in the community imposes special obligations. As scholars and educational officers, they should remember that the public may judge their profession and their institution by their utterances. Hence they should at all times be accurate, should exercise appropriate restraint, should show respect for the opinions of others, and should make every effort to indicate that they are not speaking for the institution.

AAUP Policy Documents & Reports at 3-4 (9th ed. 2001) (footnotes omitted).

The statement is worth examining carefully for its balance of rights and responsibilities. It does not treat the notion of faculty academic freedom in a vacuum; instead, it recognizes that faculty members are part of a larger educational community. The notion that professors can be required to focus on the subject matter of their courses/fields of study (see (b) above), for example, means that faculty do not have an unfettered right to talk about anything and everything in the classroom. See, e.g., Edwards v.

California U. of Pennsylvania, 156 F.3d 488 (3d Cir. 1998), cert. denied, 525 U.S. 1143 (1999).

As noted in section (c) above, the role in which a faculty member is speaking (e.g., as a citizen, as a faculty member, as a department chair, etc.) is also particularly important. See Jeffries v. Harleston, 52 F.3d 9 (2d Cir.), cert. denied, 516 U.S. 862 (1995) (distinguishing between protection for professor’s speech as a faculty member v. his administrative role as a department chair, in which he acts on behalf of the institution).

These issues can of course be especially contentious at religiously-affiliated institutions. The socalled “Limitations Clause” cited in (b) above asserts that any limitations on academic freedom based on religious principles should be clearly stated in writing when someone is hired.

In the Classroom (and Other Interactions with Students)

A number of recent reports and studies have claimed that conservative scholars are less likely to be hired and promoted in academe. Other articles have questioned the assumptions behind these studies and have argued that self-selection is a better explanation for the comparative underrepresentation of conservative faculty members at colleges and universities. See, e.g., “New Paper Assails Report That Said Bias Against Conservative Professors Is Common in Academe,” The Chronicle of Higher Education: Academe Today (Aug. 9, 2005). Still other scholars have argued that professors in certain disciplines have a duty to be open about their political positions and beliefs when they teach, and perhaps even to make an impact on their students’ attitudes toward politics. See, e.g., Avner De-Shalit, “Teaching Political Philosophy and Academic Neutrality,” 3 Theory and Research in Education 97 (2005).

David Horowitz, president of the Center for the Study of Popular Culture, has led a national campaign to urge federal and state legislators to pass the so-called “Academic Bill of Rights,” which would require public universities to expose students to a diversity of views in curricula, reading lists, and campus speakers. The document also calls for the prohibition of the grading of students and the hiring or firing of professors based on their political or religious beliefs. The proposal has been sternly criticized by the American Association of University Professors and other higher education organizations and leaders as an infringement on academic freedom by legislating that particular types of views be formally incorporated in higher education, even if faculty experts believe that the inclusion of such views may be inconsistent with rigorous standards for scholarship or appropriateness in their fields of expertise. See, e.g., Ann Marie B. Bahr, “The Right to Tell the Truth,” The Chronicle of Higher Education (May 6, 2005); Jacobson, Jennifer, “Opponents of ‘Academic Bill of Rights’ Form a Coalition to Fight It More Effectively,” id. (March 16, 2006). The measure was incorporated as a “sense of Congress” by the House majority in legislation to renew the Higher Education Act, albeit without any enforcement mechanism. Similar legislation has been introduced in over a dozen states.



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