I recently attended a panel discussion at my alma mater, the University of Texas in Austin. The topic was “Free Speech on College Campuses: Where to Draw the Line?” The event, held during Free Speech Week, was co-sponsored by UT’s Division of Diversity and Community Engagement (DDCE), the Institute for Urban Policy Research and Analysis (IUPRA), and The Opportunity Forum, all funded in whole or in part by the state of Texas. IUPRA’s mission “is to use applied policy research to advocate for the equality of access, opportunity, and choice for African Americans and other populations of color.”
College campuses do not want to become venues for hate speech. However, they also do not want to suppress the expression of free ideas. Recent incidents on college campuses involving controversial speakers have sparked a surge in disruptive and sometimes violent protests by activists. How should college campuses respond to hate speech? What are the constitutional limits on restricting speech on college campuses?
In the wake of recent, highly-publicized incidents at Middlebury, William & Mary, Berkeley, Claremont McKenna, Evergreen State, Texas Southern, and other colleges, the event attracted a large crowd, big enough to fill a lecture hall in the computer science building.
The panelists were UT journalism professor Robert Jensen, a radical activist; IUPRA Director Kevin Cokley, a professor in UT’s African and African Diaspora Studies Department (AADS); Shetal Vohra-Gupta, a social work lecturer, Associate Director of IUPRA, and one of the architects of UT’s “hate and bias incident policy”; Brianna Davis, a doctoral student at UT in Educational Leadership and Policy (and a staff member at DDCE); H.W. Perry, a non-lawyer professor of government and law; and Sharon Watkins Jones, Director of Political Strategies for the Texas ACLU. Remarkably, in light of the subject, none of the panelists held a law degree.
The sponsoring entities, together with the AADS Department, substantially comprise the interlocking directorate of UT’s diversity-Black Studies–social justice complex, which understandably are not a representative cross-section of the UT community. So why was this important topic placed under their purview? The answer is identity politics. In the name of “diversity” and “inclusion,” UT seeks to impose a “campus climate” free of “bias,” “discrimination,” and “harassment.” This, in turn, is used to justify campus speech codes and a “Campus Climate Response Team” to investigate complaints. The resulting bureaucratic arrangement inevitably — and by design — weaponizes grievances and stifles robust debate.
Oddly, given the centrality of free speech to the discussion, the U.S. Supreme Court’s First Amendment caselaw received scant attention, including the recent unanimous ruling in Matal v. Tam that so-called “hate speech” — private expression offensive to a particular racial or ethnic group — is protected. Indeed, legal scholars are well aware that unless speech falls within a handful of narrow exceptions — such as “fighting words,” defamation, obscenity, and utterances that pose a “clear and present danger” — it is absolutely protected. Few propositions of constitutional law are as well-established as the rule that the expression of ideas cannot be prohibited just because some people find the ideas to be offensive, disagreeable, or objectionable.
Nor was UT’s speech code discussed by the panelists, possibly because it is embarrassingly vague and overbroad, barring “hostile or offensive speech” if it is “not necessary to the expression of any idea described in the Institutional Rules on Student Services and Activities.” Clear as a bell? The ham-handed PC nannies at UT offer guidance to students about “insensitive” Halloween costumes, investigate off-campus fraternity parties for “inappropriate themes,” and scold student groups for conducting peaceful protests that purportedly “direct negative sentiment toward their peers.”
Unfortunately, many higher education administrators, especially those responsible for enforcing the prevailing notions of political correctness on campus, are oblivious to the protections guaranteed by the First Amendment. The correct answer to the question posed by the program at UT is: Free speech should be permitted on college campuses to the full extent required by the Constitution, and complaints should be investigated even-handedly with the paramount goal of protecting free expression. Sadly, that is not the case at UT or many other colleges and universities across the country. In the name of promoting “diversity” and “inclusion,” free speech is routinely suppressed. And, ironically, the UT faculty and administrators responsible for promoting “diversity” seem utterly unconcerned with political or ideological diversity, and preoccupied instead with race and gender. “Diversity” is actually a subterfuge to impose conformity.
The panelists expressed a range of opinions, varying from far-left-of-center to merely left-of-center, but most accepted as a given that — absent intervention by the UT administration — students might be “harmed” by campus speech that is offensive, “hateful,” indicative of “privilege,” or tending to “oppress” a “marginalized group.” The moderator questioned whether the university might be doing college students a disservice by “coddling” them and treating them like “snowflakes” in order to shield them from opinions they may find uncomfortable (albeit which are prevalent in the real world), but the consensus from the panel was that “trigger warnings” and “safe places” are necessary and desirable. It is a sad commentary on the degree of political bias within academia that the representative from the American Civil Liberties Union was the most balanced speaker on the issue of free speech (although even the ACLU may be yielding to the “heckler’s veto”).
While the violent confrontation in Charlottesville occurred in a public park, not the University of Virginia campus, the proponents of campus speech codes cite “safety” concerns as grounds for restricting the First Amendment rights of students, student organizations, and outside speakers. By conflating physical violence with amorphous “psychological” and “emotional” harm, the would-be campus Thought Police justify censorship in the guise of preventing “hate speech.” As one of the panelists, Ms. Vohra-Gupta, wrote in an op-ed for the Houston Chronicle entitled “More universities need to embrace anti-hate policies”:
Freedom of speech is not an absolute right. The intent behind freedom of speech is the right to free speech without fear of government interference. It seems some have taken this constitutional right to mean having the freedom of speech without any interference at all. Universities have a right to ensure all students have access to an educational environment free from discrimination.… Universities are a beacon of learning, but without ensuring intent to engage in safe, open and civil dialogue as free speech was intended [sic], marginalized students will live in constant fear. (Emphasis added.)
The notion that the psychic tranquility of “marginalized students” (whoever they are) justifies suppression of other students’ free speech finds no support in First Amendment jurisprudence, but is a central tenet of “critical race theory,” from which UT’s speech code was derived.
In an IUPRA Policy Report co-authored by Ms. Vohra-Gupta, she contends that due to endemic racism on all college campuses “it is important to disrupt existing power structures and promote social justice for marginalized students of color.” Race-neutral policies are insufficient because “they promote White supremacy by invalidating students’ identities and experiences who are from different racial backgrounds.” Accordingly, “it is clear that the dominant ideology, White privilege, is not fully dismantled, the power differentials and lived experiences with which marginalized students of color come with is not recognized, and repercussions of covert (as well as overt) forms of racism are not handled in the most justice-based manner.”
Another IUPRA document co-authored by Ms. Vohra-Gupta advocates a definition of “hate speech” based on the subjective perception of the person to whom it is directed that it was “motivated by prejudice or hate because of that person’s race, color, national origin, ancestry, sex/gender, religion, religious practice, age, disability, or sexual orientation.” The document suggests that the criteria for serving on the “response team” responsible for investigating complaints include “majority representation of marginalized groups, knowledge base of intersectionality of oppression and how bias and prejudice exist in implicit and explicit ways, and passion to eliminate bias, prejudice, and oppression on campus.” IUPRA concludes that “Policies designed through dominant culture do not account for marginalized students’ concerns.” This pseudo-academic gobbledygook is a prescription for a kangaroo court. Not only is the IUPRA’s jargon-filled analysis intolerant of free speech and disrespectful of the First Amendment, by explicitly advocating race-based differentials for legal protection, it is also racist.
Predictably, given the orientation of the panelists, no one on the panel offered a coherent definition of “hate speech” — nor is there one. As near as I can tell, campus “diversity” enforcers believe that “hate speech” consists of the expression of views with which they disagree, especially if the speaker is a white male (often labeled a “white supremacist” or a member of a “privileged group”), the topic involves race (which makes the objectionable opinion “racist” or “discriminatory”), or the speaker is associated with a disfavored group such as a fraternity or conservative organization. I was surprised when Professor Jensen suggested that the entire Greek system at UT should be banned, even fraternities situated off-campus, on the ground that they are oppressive “rape factories.” Another panelist referred (without explanation) to a campus group, Young Conservatives of Texas, as having a “legacy of hatred.” So much for tolerance.
The overwhelmingly-progressive faculty and administration of UT must remain cognizant of the fact that that UT serves the public, and that Texas is a conservative state. The UT “bubble” is pronounced enough, and UT’s inbred “diversity bureaucracy” is even more insular. The panelists seemed incredulous that anyone could be opposed to affirmative action, or that outside speakers such as Ann Coulter, Charles Murray, or Milo Yiannopoulos should have a right to appear on campus. The panelists seemed amenable to curbing outside speakers based solely on the threat of violence by protesters, thus empowering the heckler’s veto. When the moderator of the panel mentioned that his sister voted for Donald Trump — as did a lopsided majority of Texas voters — the panelists, and many in the audience, reacted with disbelief. Even knowing someone with conservative beliefs seemed inconceivable to the panelists! Yet these are the “experts” convened to comment on campus free speech. Such cloistered attitudes reflect poorly on an institution supposedly devoted to promoting pluralism and intellectual diversity.
The panelists expressed a strong consensus in favor of their own academic freedom — the absolute right to dictate the content of the courses they teach and the style of pedagogy they adopt. But the students they teach — especially conservatives — should not enjoy reciprocal protection; they can fend with the Thought Police. This is abject hypocrisy. UT should rescind its restrictive speech code and adopt in its place the model policy recommended by the Goldwater Institute. If UT won’t do this on its own, the Texas legislature should impose a neutral policy by statute, as North Carolina has. Texas Lt. Gov. Dan Patrick has made protecting free speech on Texas college campuses a priority. The Senate State Affairs Committee could begin by taking a hard look at the liberal fascists running amok at UT.