From: kadie@eff.org (Carl M. Kadie)
Subject: AAUP: "On Freedom of Expression and Campus Speech Codes"
Originator: kadie@eff.org
Organization: The Electronic Frontier Foundation
Date: Tue, 1 Sep 1992 23:21:50 GMT

======= ftp.eff.org:pub/academic/academic/speech-codes.aaup =======

[This is a policy statement from the American Association of
University Professors. The statement was endorsed by AAUP's Committee
A on Academic Freedom and Tenure and by its Council at their meetings
in June 1992. As with all AAUP policy statements, it is in the public
domain. It was published in the July-August 1992 _Academe_.]

On Freedom of Expression and Campus Speech Codes

Freedom of thought and expression is essential to any institution of
higher learning. Universities and colleges exist not only to transmit
existing knowledge.  Equally, they interpret, explore, and expand that
knowledge by testing the old and proposing the new.

This mission guides learning outside the classroom quite as much as in
class, and often inspires vigorous debate on those social, economic,
and political issues that arouse the strongest passions. In the
process, views will be expressed that may seem to many wrong,
distasteful, or offensive. Such is the nature of freedom to sift and
winnow ideas.

On a campus that is free and open, no idea can be banned or forbidden.
No viewpoint or message may be deemed so hateful or disturbing that it
may not be expressed.

Universities and colleges are also communities, often of a residential
character. Most campuses have recently sought to become more diverse,
and more reflective of the larger community, by attracting students,
faculty, and staff from groups that were historically excluded or
underrepresented. Such gains as they have made are recent, modest, and
tenuous. The campus climate can profoundly affect an institution's
continued diversity. Hostility or intolerance to persons who differ
from the majority (especially if seemingly condoned by the
institution) may undermine the confidence of new members of the
community. Civility is always fragile and can easily be destroyed.

In response to verbal assaults and use of hateful language some
campuses have felt it necessary to forbid the expression of racist,
sexist, homophobic, or ethnically demeaning speech, along with conduct
or behavior that harasses. Several reasons are offered in support of
banning such expression. Individuals and groups that have been victims
of such expression feel an understandable outrage. They claim that the
academic progress of minority and majority alike may suffer if fears,
tensions, and conflicts spawned by slurs and insults create an
environment inimical to learning.  These arguments, grounded in the
need to foster an atmosphere respectful of and welcome to all persons,
strike a deeply responsive chord in the academy. But, while we can
acknowledge both the weight of these concerns and the thoughtfulness
of those persuaded of the need for regulation, rules that ban or
punish speech based upon its content cannot be justified. An
institution of higher learning fails to fulfill its mission if it
asserts the power to proscribe ideas -- and racial or ethnic slurs,
sexist epithets, or homophobic insults almost always express ideas,
however repugnant. Indeed, by proscribing any ideas, a university sets
an example that profoundly disserves its academic mission.  Some may
seek to defend a distinction between the regulation of the content of
speech and the regulation of the manner (or style) of speech. We find
this distinction untenable in practice because offensive style or
opprobrious phrases may in fact have been chosen precisely for their
expressive power. As the United States Supreme Court has said in the
course of rejecting criminal sanctions for offensive words: [W]ords
are often chosen as much for their emotive as their cognitive force.
We cannot sanction the view that the Constitution, while solicitous of
the cognitive content of individual speech, has little or no regard
for that emotive function which, practically speaking, may often be
the more important element of the overall message sought to be
communicated.  The line between substance and style is thus too
uncertain to sustain the pressure that will inevitably be brought to
bear upon disciplinary rules that attempt to regulate speech.
Proponents of speech codes sometimes reply that the value of emotive
language of this type is of such a low order that, on balance,
suppression is justified by the harm suffered by those who are
directly affected, and by the general damage done to the learning
environment.  Yet a college or university sets a perilous course if it
seeks to differentiate between high-value and low-value speech, or to
choose which groups are to be protected by curbing the speech of
others. A speech code unavoidably implies an institutional competence
to distinguish permissible expression of hateful thought from what is
proscribed as thoughtless hate.  Institutions would also have to
justify shielding some, but not other, targets of offensive language
-- not to political preference, to religious but not to philosophical
creed, or perhaps even to some but not to other religious
affiliations. Starting down this path creates an even greater risk
that groups not originally protected may later demand similar
solicitude -- demands the institution that began the process of
banning some speech is ill equipped to resist.

Distinctions of this type are neither practicable nor principled;
their very fragility underscores why institutions devoted to freedom
of thought and expression ought not adopt an institutionalized
coercion of silence.

Moreover, banning speech often avoids consideration of means more
compatible with the mission of an academic institution by which to
deal with incivility, intolerance, offensive speech, and harassing
behavior:

(l) Institutions should adopt and invoke a range of measures that
penalize conduct and behavior, rather than speech, such as rules
against defacing property, physical intimidation or harassment, or
disruption of campus activities. All members of the campus community
should be made aware of such rules, and administrators should be ready
to use them in preference to speech-directed sanctions.

(2) Colleges and universities should stress the means they use best --
to educate -- including the development of courses and other
curricular and co-curricular experiences designed to increase student
understanding and to deter offensive or intolerant speech or conduct.
Such institutions should, of course, be free (indeed en and
discrimination, whether physical or verbal.

(3) The governing board and the administration have a special duty not
only to set an outstanding example of tolerance, but also to challenge
boldly and condemn immediately serious breaches of civility.

(4) Members of the faculty, too, have a major role; their voices may
be critical in condemning intolerance, and their actions may set
examples for understanding, making clear to their students that
civility and tolerance are hallmarks of educated men and women.

(5) Student personnel administrators have in some ways the most
demanding role of all, for hate speech occurs most often in
dormitories, locker-rooms, cafeterias, and student centers. Persons
who guide this part of campus life should set high standards of their
own for tolerance and should make unmistakably clear the harm that
uncivil or intolerant speech inflicts.

To some persons who support speech codes, measures like these --
relying as they do on suasion rather than sanctions -- may seem
inadequate. But freedom of expression requires toleration of "ideas we
hate," as Justice Holmes put it. The underlying principle does not
change because the demand is to silence a hateful speaker, or because
it comes from within the academy.  Free speech is not simply an aspect
of the educational enterprise to be weighed against other desirable
ends.  It is the very precondition of the academic enterprise itself.


-- 
Carl Kadie -- I do not represent EFF; this is just me.
 =kadie@eff.org, kadie@cs.uiuc.edu =
Newsgroups: alt.comp.acad-freedom.talk