The Irony and Efficacy of University Speech Codes
William Derek Green
College administrators are often considered to be the foremost advocates of “open dialogue,” “diversity of thought,” and of course, “freedom of speech.” However, in a disturbing trend that has developed over the last 30 years at universities across the United States, these laudable principles have increasingly existed side by side with speech codes whose paradoxical effect is to repress open dialogue, inhibit diversity of thought, and interfere with freedom of speech. Between 1990 and 1991, for example, the number of hate-speech codes at American universities ballooned from approximately 75 to over 300. Currently, over 95% of universities enforce restrictions on speech. Supporters of such restrictions have asserted that “[t]he verbal attack is a symptom of an oppressive history of discrimination and subjugation that plagues the harmed student,” and that “[t]he resulting harm is clearly significant and, therefore, justifies limiting speech rights.” But while eliminating the legacies of societal discrimination is a commendablegoal, one that every citizen should strive to make reality, institutionalized restrictions on personal expression are incompatible with the Constitution’s guarantee of free speech. Furthermore, such restrictions are almost certainly antithetical, or at the very least, unnecessary, to achieving a tolerant society.
University speech codes have frequently been found unconstitutional. In the 1980’s the University of Michigan issued a policy prohibiting “[a]ny behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status.” In order to constitute a violation of university policy, such behavior need not be directed towards any particular student; it need only be deemed, in the discretion of school officials, to constitute prohibited behavior. The court of the Eastern District of Michigan held that the restrictions were overbroad prohibitions on the First Amendment’s guarantee of free speech and so vague as to prevent students from fully exercising their rights under the Due Process clause. Plainly disturbed by the idea that such policies would “put…universities into the business of censorship,” the District Judge discussed the importance of free speech and the hypocrisy of university administrators at length in the opinion’s conclusion. The Judge found it particularly ironic that the university had issued a statement prior to the adoption of its speech codes stating that “[t]he belief that some opinion is pernicious, false, or in any other way detestable cannot be grounds for its suppression.” Such inconsistency was apparently lost, perhaps willfully, on the administrators. In the twenty-four years since the University of Michigan opinion was issued, the weight of authority has been against campus speech codes, yet they persist at the majority of American universities, even those located in jurisdictions that have found speech codes unconstitutional.
In the essay Kindly Inquisitors, Revisited, Jonathan Rauch bemoans the proliferation over the last twenty years of what he calls “the new attacks on free thought.” Observing that attacks on free speech in the guise of anti hate-speech laws are routinely considered unconstitutional in the United States, Rauch notes that such speech restrictions have nevertheless become commonplace by sneaking in through the back door of bureaucratic prohibition: overbroad “hostile environment” laws have prevented atheist-unfriendly Bible verses from being printed on receipts, and University of Pennsylvania speech codes once led to the prosecution of a Jewish student for calling a group of African-American sorority sisters “water buffalo,” a decidedly race-neutral term drawn from Hebrew slang for “rowdy person.” Rauch believes that those who would legally restrict hurtful or discriminatory speech “mistake the cart for the horse,” because hate-speech laws are, invariably, not the cause of increased societal tolerance for the protected group, but rather the effect.
Homosexuals in the 1960’s, Rauch writes, were subject to ubiquitous hatred from every corner of American society. But just fifty years later, despite the absence of any sort of hate-speech law designed to protect them, American homosexual rights enjoy firm majoritarian support. So what changed? Quite simply, homosexuals began to talk, out loud, in the media, and to anyone who would listen; often to those who wouldn’t. Rauch points to Frank Kameny, a World War II veteran who, in 1957, was fired from the U.S. Army Map Service for being gay. Unlike most, who would merely stand down and suffer, Kameny fought back. He vigorously demanded that the U.S. Civil Service Commission reinstate him, filed a Supreme Court brief, and led the first gay rights demonstrations, in front of the White House, no less. Momentum built, more and more homosexuals refused to be marginalized, and eventually American society changed. “If the pervasiveness of bigotry was supposed to silence them, as hate-speech allegedly does, Frank Kameny” and all those who followed his example “missed the memo.”
In the unthinkable event that hate-speech laws had been passed in the gay-unfriendly America of the 1960’s, they would only have hampered the efforts of people like Frank Kameny. “It would have given the illusion that the job was finished when, in fact, the job was only beginning. It would have condescended to a people fighting for respect.” The route through which those like Frank Kameny destroyed prejudice and reconfigured American society for the better was not legislative fiat, but rational discourse in civil society. The suggestion that homosexuals are not evil, immoral, or sick may have fallen on largely deaf ears in the 1950’s and 1960’s, but once it was heard enough, people began to test that statement for its truth. And they realized that Frank Kameny was correct: homosexuals are people, just like everyone else, deserving of the same rights, the same reprimands, and the same rewards. Kauch calls this process “liberal science,” the testing of ideas for their veracity, and the weeding out of those ideas that do not pass muster. Such a process depends on the expression of those ideas which may be considered toxic, or are even plainly wrong; without a proposition to rebut, it becomes difficult to convince people of the truth.
It is sadly ironic that American universities, supposed bastions of intellectual freedom and the search for truth, would put such a stranglehold on what they claim to hold most dear. But there is some cause for hope among defenders of civil liberties. 2013 marks the fifth year in a row that university speech codes have declined in number. Furthermore, universities are increasingly eliminating all of their speech codes. There has also been a groundswell of support for the repeal of campus speech codes, as shown by the creation of the Foundation for Individual Rights in Education, a group devoted to ending university speech codes, and the American Civil Liberties Union’s staunch opposition to such policies. Furthermore, Jonathan Rauch believes that arguments against hate-speech have grown more modest, eschewing prohibitions on discriminatory speech, and focusing instead on much narrower restrictions on “hostile environments.” Whatever the present state of free speech may be, we would be wise to heed the words of Michigan Supreme Court Justice Thomas Cooley, who wrote in 1868 that when speech “exceed[s] all the proper bounds of moderation, the consolation must be that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.” As the Court for the Eastern District of Michigan observed in Doe v. Michigan, Cooley’s words are no less relevant today than they were over one hundred and forty years ago.
 Gerald Uelmen, The Price of Free Speech: Campus Hate Speech Codes, Markula Center for Applied Ethics (Nov. 19, 2013, 5:14 PM), http://www.scu.edu/ethics/publications/iie/v5n2/codes.html.
 See, Spotlight on Speech Codes 2013: The State of Free Speech on Our Nation’s Campuses, The Foundation for Individual Rights in Education (2013), http://thefire.org/public/pdfs/Spotlight_on_Speech_Codes_2013.pdf.
 Uelmen, supra, note 1.
 Doe v. Univ. of Michigan, 721 F. Supp. 852, 856 (E.D. Mich. 1989).
 Id. at 857, 858.
 Id. at 864-869.
 Id. at 868 (citations omitted).
 Spotlight on Speech Codes 2013: The State of Free Speech on Our Nation’s Campuses, supra, note 2, at 7. For a list of cases holding campus speech codes unconstitutional, see note 10 at page seven of Spotlight on Speech Codes 2013: The State of Free Speech on Our Nation’s Campuses, supra, note 2.
 Id. at 2.
 Jonathan Rauch, Kindly Inquisitors, Revisited, Reason, Dec. 2013, available at http://reason.com/archives/2013/11/15/kindly-inquisitors-revisited.
 Sandy Hingston, A History of Political Correctness: 20 Years After Penn’s “Water Buffalo” Incident, Philadelphia, Apr. 28, 2013, available at http://www.phillymag.com/articles/penns-water-buffalo-incident-20-years/.
 Rauch, supra, note 11.
 See, Spotlight on Speech Codes 2013: The State of Free Speech on Our Nation’s Campuses, supra, note 2.
 Id. As a matter of pride, the author would like to point out that his undergraduate alma matter, the University of Tennessee, is one of only fifteen universities that, according to the Foundation for Individual Rights in Education, imposes no serious restrictions on freedom of speech. Id. at A-6.
 See, Hate Speech on Campus, The American Civil Liberties Union, Dec. 31, 1994, https://www.aclu.org/free-speech/hate-speech-campus.
 Rauch, supra, note 11.
 Doe v. Univ. of Michigan, 721 F. Supp. 852, 869 (E.D. Mich. 1989) (citing T. Cooley, A Treatise on the Constitutional Limitations 429 (Da Capo ed. 1972) (1st ed. 1868)).