Dear President Bennet:

Thank you very much for your reply of September 24. We are most encouraged to learn that you will review both the "verbal harassment and abuse" portion of the Wesleyan code, and the appropriate scope of student judicial bodies at Wesleyan.

Please forgive the tardiness of our response, but the pressures of my schedule have made it difficult for me to allocate sufficient time to compile the information you requested. We hope you will find the following summary useful. Let us know if you'd like me to send you copies of the actual Court decisions.

Before discussing specific cases, I would like to recommend a few books. Must reading is Speaking of Race, Speaking of Sex: Hate Speech, Civil Rights and Civil Liberties (New York University Press: 1994), edited by Henry Louis Gates, Jr., Chair of the Afro-American Studies Department at Harvard. This anthology includes Gates' excellent essay, "War of Words: Critical Race Theory and the First Amendment," an adaptation of his article, "Let Them Talk." (New Republic, September 20 and 27, 1993.) I found Gates' original New Republic article most useful in clarifying my own thinking on this difficult topic. I recommend all of the essays in this anthology.

I also recommend Hate Speech: The History of an American Controversy (University of Nebraska Press: 1994) by Samuel Walker and a very recent book, Fighting Words: The Politics of Hate Speech (Praeger: 1996) by Laurence R. Marcus. In a few months, look for a new book on the subject by Harvey Silverglate, tentatively titled, Where the Buffalo Roam.

The speech codes that begin plaguing college campuses in the late 80s were a predictable result of the diversification that had begun a few years prior. Students found themselves sharing classes, dormitories, and dining halls with many who differed from them in race, religion, sexual orientation, socio-economic class, ethnicity, etc. This diversity was very exciting, and provided a wonderful learning opportunity that could still reap priceless benefits by nurturing a more tolerant society. Unfortunately, this diversity also precipitated incidents where prejudice was expressed openly and vulgarly.

Controversies ensued and--as every college administrator knows--controversy is bad for business. The negative effects were felt both in student recruitment (especially minority-student recruitment) and in fundraising. Although the best remedy for bad speech is more speech, this best response does require thought and work. Censorship suggested itself as an quick-and-easy alternative.

I remember once hearing a woman speaker who had grown up in an alcoholic home. She said that in her house there had been two rules: (1) There's nothing wrong here, and (2) We don't talk about it. I think a similar denial operated at schools faced with bigoted opinions from students and faculty members. Administrators decided that if they could just stop people from talking, they could then pretend to the world (and to themselves) that nothing was wrong on their campuses. And if nothing was wrong, then they didn't have to do anything about it. Ban hate speech and hatred disappears! What a simple (and simple minded) solution.

Colleges and universities rushed to adopt speech codes and they employed several strategies. The approach taken by Wesleyan exemplifies what I call the "Potter Stewart strategy." (Stewart, as I'm sure you remember, made the famous remark about hard-core pornography, "I know it when I see it.") Wesleyan, as we pointed out in our letter of September 20, states "Harassment and abuse...may include...verbal harassment and abuse," and trusts that the Student Judicial Board will know them when they see them. The case we wrote you about demonstrates beyond a reasonable doubt that they will not. Wesleyan's current policy is indisputably vague, subjective and overbroad.

The two other approaches colleges have taken to limit speech are (1) to mirror the EEOC guidelines concerning sexual harassment in the workplace, deriving from Title VII of the Civil Rights Law of 1964 and (2) to base a code on the "fighting words" doctrine first enunciated by the Court in Chaplinsky v. New Hampshire in 1942.

There have been many legal challenges to speech codes of both the Title VII and the "fighting words" variety. So far, advocates for free speech are battling 1000 and the colleges and universities are batting zero. We expect that this trend will continue, and that many more schools will incur enormous legal costs fighting pointless losing battles. If I were a college administrator, and the lawyers advised going to court to preserve a speech code, I would be skeptical. Lawyers get paid, after all, win or lose.

Most of the cases we summarize below occurred at public universities, where students without question have full First Amendment protection. Some will argue that these cases are irrelevant for Wesleyan, since Wesleyan as a private college can disregard the First Amendment with impunity. We suggest you not take this advice. First of all, Connecticut may well have laws that protect the Constitutional rights of students at private colleges and universities. But even if it does not, we strongly suggest that Wesleyan should simply grant those rights to members of your community as a matter of moral principle. If you choose not to do this, we suggest you honestly inform prospective students that if they want full First Amendment protection they should apply, for example, to the University of Connecticut.

The first school-code case to be summarized will be Doe v. University of Michigan. But before we discuss it, a summary of a few cases that provide precedent might be useful.

Chaplinksy v. New Hampshire (1942) and the evolution of the "fighting words" doctrine. Chaplinsky was a Jehovah's Witness who was arrested for calling a policeman "a God-damned racketeer" and "a damn fascist." The Supreme Court upheld his conviction, and enunciated a two-pronged test that denied constitutional protection for words that "by their very utterance inflict injury or tend to incite an immediate breach of the piece." But Chaplinsky is not "good law." The Court has never used it to uphold a conviction, and in the intervening years has greatly narrowed it. The first prong was discarded all together and the second prong must now pass stringent tests. In Brandenburg v. Ohio (1969), the Court ruled that even advocacy of criminal conduct is protected, unless the speech is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action." In Cohen v. California (1971) the Court ruled that fighting words must be specifically directed at an individual. In Gooding v. Wilson (1972), according to Marcus , "offending words must be contextually evaluated and there is no constitutional bar to language that might be expected in a given situation." (op. cit., p.119). Finally, in R.A.V. v. St. Paul, Minnesota (1992), the Court voided an ordinance that selectively targeted certain "fighting words"--those that "arouse[s] anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender." The Court stated that "the government may not regulate use based on hostility--or favoritism-- towards the underlying message expressed" and that "the First Amendment does not permit...special prohibition on those speakers who express views on disfavored subjects." (See Marcus, pp. 118-120).

Meritor Savings Bank v. Vinson (1986) and Harris v. Forklift (1993). These are the two most important Supreme Court cases dealing with sexual harassment in the workplace. These rulings affirm that "Title VII is violated when the workplace is permeated with discriminatory behavior that is sufficiently severe or pervasive to create a discriminatorily hostile or abusive working environment...this standard requires an objectively hostile or abusive environment--one that a reasonable person would find hostile or abusive--as well as the victim's subjective perception that the environment is abusive." For the employer to be liable, the offending behavior must be committed by or permitted by a superior who is an agent of the employer. [Note that the case we originally contacted you about fails these tests on all counts. The speech was targeted, but was neither severe nor pervasive, did not permeate the workplace, was not committed by or permitted by a superior, and in no sense altered the work environment in a discriminatory manner. Again, this clearly demonstrates that student disciplinary boards are woefully inadequate to the task of judging whether or not harassment, sexual or otherwise, has occurred.]

Doe v. University of Michigan (1989). The Michigan code was a typical Title VII style policy applying to "Any behavior [in academic buildings], verbal or physical, that stigmatizes or victimizes an individual on the basis of race, [etc.]..." that "involves an express or implied threat" and "has the purpose or reasonably foreseeable effect of interfering with an individual's academic efforts, employment, participation in University sponsored extra- curricular activities or personal safety." Another part of the code, applicable to "sex or sexual orientation," further forbids speech that "creates an intimidating, hostile or demeaning environment for educational pursuits, employment or participation in University sponsored extracurricular affairs."

The University distributed a handbook with examples of the sort of speech forbidden at the University of Michigan: "Your student organization sponsors entertainment that includes a comedian who slurs Hispanics": "A male student makes remarks in class like `Women just aren't as good in this field as men'." Another cited example was a dormitory party in which a student is not invited because some think she's a lesbian. While the speech code was in effect, on more than twenty occasions white students charged blacks with racist speech. On two occasions, sanctions were invoked against speech by or on behalf of African Americans. No white student was sanctioned for racist speech against blacks. Students were punished for remarks made during class discussions. For example, a black student in a social-work class was punished for expressing the opinion that homosexuality was a curable disease. A dental student was charged by a faculty member because the student said that he'd heard that "minorities had a difficult time in the course and that...they were not treated fairly."

The speech code was challenged by a graduate student in biopsychology who argued that it infringed on his ability to teach. The code was invalidated by the District Court for the Eastern District of Michigan, ruling that the code was facially vague and overbroad. The Court held that the code restricted speech well in excess of unprotected "fighting words," and that, on three separate occasions, the code had been applied to speech protected by the Constitution. The Court ruled that the code was impermissibly vague in that it did not "give adequate warning of the conduct which is to be prohibited and...set out explicit standards for those who apply it." The words "stigmatize" and "victimize," "interference," and the phrase "threat to an individual's academic efforts" were judged to be "general and elude precise definition." The Court concluded "that the University had no idea what the limits of the Policy were and it was essentially making up the rules as it went along."

The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System. ((1991) This speech code, designed to avoid the pitfalls of the Michigan code, is summarized by Marcus as follows: "Sanctions would be applied to speech that was racist or discriminatory on the basis of ethnicity, religion, gender, sexual orientation, etc., if it was directed at an individual, intended to demean that person on the basis of one of the protected characteristics, and meant to create a hostile or intimidating campus environment." (p. 127)

This code was struck down as unconstitutional by the District Court for the Eastern District of Wisconsin. The Court rejected the argument that the policy only covered "fighting words" under Chaplinsky, explicitly declaring the first prong of Chaplinsky "defunct" and that the code's scope far exceeded that of the second prong. Moreover, by singling out racist speech the code was not content neutral. (The Supreme Court later affirmed the same standard in the R.A.V. decision.) Moreover, the Court ruled that the Meritor decision did not apply because it addressed employment, not educational situations; that students are in no sense agents of a university; and that Title VII does not create an exception to the First Amendment.

Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University (1991). The fraternity sued after the University imposed sanctions for two years following the fraternity's staging of an "ugly woman" contest for a charity fund-raising event. The fraternity was victorious in the Eastern District of Virginia, whose decision cited the Supreme Court case Texas v. Johnson (1989), which had held that publicly burning an American flag was Constitutionally protected speech. The Court stated that the "First Amendment does not recognize exceptions for bigotry, racism, and religious intolerance or matters some deem trivial, vulgar, or profane."

Silva v. University of New Hampshire (1994). Donald J; Silva, a Communications Instructor and tenured member of the UNH faculty, was disciplined under the University's sexual harassment policy for making classroom statements comparing focus to sex, and for explaining simile by quoting Little Egypt, "Belly dancing is like jello on a plate with a vibrator under the plate." Silva was suspended without pay for one year, required to "reimburse the University for all costs associated with any and all alterations in teaching assignments by Professor Silva's behavior," to participate in counseling sessions for one year (at his own expense) with a counselor selected by the University, to make no attempt to retaliate against the students who filed the charges against him, and to apologize in writing to the complainants for creating a hostile and offensive environment.

Silva reacted to this outrageous treatment by suing, and won his case in United States District Court for New Hampshire. The Court stated that:

"...our nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom...The classroom is peculiarly the `marketplace of ideas'. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, [rather] than through any kind of authoritative selection'...The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation...Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die...the USNH Sexual Harassment Policy as applied to Silva's classroom speech is not reasonably related to the legitimate pedagogical purpose of providing a congenial academic environment because it employs an impermissibly subjective standard that fails to take into account the nation's interest in academic freedom. Accordingly, the court finds that the application of the USNH Sexual Harassment Policy to Silva's classroom statements violates the First Amendment."

Speech or other expression constitutes harassment by personal vilification if it:

a) is intended to insult or stigmatize an individual of a small number of individuals on the basis of their sex, race, color, handicap, religion, sexual orientation, or national and ethnic origin; and

b) is addressed directly to the individual or individuals whom it insults or stigmatizes; and

c) makes use of insulting or "fighting" words or non-verbal symbols.

The case was heard by the Superior Court of the County of Santa Clara, and it ruled for the students on every count. With respect to overbreadth, the Court ruled that the code was facially invalid. Because of the narrowing of Chaplinsky, and because Grey had inserted the words insult, insults, and insulting, the code applied to speech that could cause emotional distress, but would not incite an immediate breach of the peace and was therefore unconstitutional by the standard enunciated in R.A.V. Stanford challenged both the constitutionality and the applicability of the Leonard law, but the Court rejected these arguments, noting that the code explicitly restricted speech. Stanford also argued that the Leonard law impinged on Stanford's own academic freedom, but the Court rejected this argument because the Leonard law in no way restricted Stanford's ability to express disapproval of harassing speech.

Cohen v. San Bernadino College (1996). Dean Cohen, a tenured professor at the college, assigned provocative essays and discussed subjects such as obscenity, cannibalism, and consensual sex with children in his remedial English class. In once class, he read articles from Playboy and Hustler and assigned the class to write an essay defining pornography. A female student filed sexual harassment charges, and the college found him in violation of their code, which followed the EEOC Title VII model. The college ordered Cohen to provide a class syllabus, to attend a sexual harassment seminar, to undergo a formal evaluation, and to become sensitive to the needs of his students and to modify his teaching strategy. Cohen was advised that further violation of the code could result in suspension or termination. Cohen sued. The district court ruled for the college, but this ruling was overturned by the U.S. Court of Appeals for the Ninth Circuit, which ruled that the code was unconstitutionally vague. The Court stated:

...officials of the College, on an entirely ad hoc basis, applied the Policy's nebulous outer reaches to punish teaching methods that Cohen had used for many years. Regardless of what the intentions of the officials of the College may have been, the consequences of their actions can best be described as a legalistic ambush. Cohen was simply without any notice that the Policy would be applied in such a way as to punish his long-standing teaching style--a style which until the College imposed punishment upon Cohen under the Policy, had apparently been considered pedagogically sound within the bounds of teaching methodology permitted at the College.

A great many college speech codes have not been brought into Court, but have caused considerable embarrassment to the involved institutions. We're sure you're familiar with some of these horror stories. A famous case involved the University of Pennsylvania student who was brought up on charges for shouting, "Shut up, water buffalo!" at a group of black women students partying noisily outside his dorm room after midnight. Charges were dropped after the University became an international laughingstock. At Penn State University, Professor Nancy Stumhofer, with the vigorous support of the Penn State Commission for Women and the Director of the University's Affirmative Action Office, succeeded in removing a reproduction of Goya's Naked Maja from the wall of the Schuylkill campus music room. Grayson Snyder, a teacher at Chicago's Theological Seminary was convicted of sexual harassment for teaching a story from the Talmud.

We're sure you've heard the popular definition of insanity-- repeating old behavior and expecting different results. Given the legal history of college speech codes, one might conclude that an alarming epidemic of insanity has infected the administrations of most of our private and public institutions of higher learning. We believe that it's time for the nonsense to end.

We fear that college administrators will continue to waste valuable mental energy trying to devise the perfect speech code--one which will banish "bad" speech, protect "good" speech, and yet pass Constitutional muster as content- neutral. We suggest that this energy could as profitably be spent attempting to square the circle or to construct a perpetual motion machine. If college administrators truly want speech codes, perhaps they should first mount a national campaign to repeal the First Amendment. (Sadly, in today's repressive intellectual climate, such an effort might actually succeed.) But as long as the First Amendment is law, judges will see through devious college administrators who cleverly try to cheat it.

We urge you to suspend the Wesleyan speech code as soon as possible. Criminal cases can and should be handled by the established legal system. In civil cases, if all concerned parties wish to avoid litigation, we suggest that mediation might be the best solution. At the very least, suspend prosecutions under the current code while it is under review. Consider lifting penalties that have already been imposed, if for no other reason than to protect Wesleyan from litigation. In the case that prompted our contacting you, for example, the student may have a strong civil case against the College. But I am not a lawyer, and I'm sure he'll look elsewhere for professional advice.

We look forward to a continuing dialogue on these important issues. Thank you very much for the actions you have already taken, for your openness, and for your thoughtful attention to our concerns.

Sincerely,

Robert B. Chatelle, Co-Chair
Political Issues Committee
National Writers Union UAW Local 1981 AFL-CIO

cc: Judith Krug, American Library Association; Anne Green, People for the American Way; Ann Beeson, ACLU; Leanne Katz, National Coalition Against Censorship; David Mendoza, National Campaign for Freedom of Expression; Declan McCullagh, Justice on Campus; other members of the Free Expression Network; Nat Hentoff, Harvey Silverglate, other members of the press; Steve Simurda and Daphne Patai, University of Massachusetts at Amherst; other interested parties.