IS FREE SPEECH IN PERIL AT WVU?
by Daniel Shapiro
Is the right to free speech respected at WVU? There's good news and bad news. The good news is that the WVU speech codes--regulations which threaten to punish students and faculty for expressing controversial viewpointsmay have been removed. The bad news is that they existed in the first place, and were formed with little student or faculty knowledge.
Speech codes at WVU? What am I talking about? Read on. The sad story is told below.
HISTORY OF THE CONTROVERSY
Last year a group of concerned faculty formed the West Virginia Association of Scholars. We did so because we believed that political correctness was a real problem on our campus. Despite all the talk about "diversity" on campus, there seemed to us to be little intellectual diversity. At a university level, there is little or no discussion of different viewpoints on topics such as affirmative action, multiculturalism, free speech and academic freedom. In March 1997, the West Virginia Association of Scholars (WVAS) invited Alan Kors, Professor of History at the University of Pennsylvania, to speak about free speech on college campuses today. He informed the audience of the WVU administration's speech codes, which he found at Office of Social Justice (OSJ) web sites under the topics of sexism, racism, and homophobia. The web sites were supposedly about harassment and discrimination, but defined sexism, racism and homophobia in terms of speech and expression, and threatened punishments as severe as expulsion from the university and thought control sessions (dubbed "education remediation".) We also discovered that these speech codes were part of new faculty orientation, at least from fall 1995 to fall 1996.
WVAS sent the administration a letter detailing the problems with speech codes, and asked for their removal. At first, the administration refused to address our concerns. We asked the American Civil Liberties Union (ACLU) of West Virginia for helpits President, Robert Bastress, is Professor of Law at WVUand after a series of letters from WVAS and the ACLU, the administration removed the OSJ web sites. You can view the speech codes, along with the letters from WVAS, the ACLU and the administration, at WVAS's web sites:
WHAT'S WRONG WITH SPEECH CODES
It is important to understand exactly why WVU's speech codes were a moral and constitutional outrage.
1. WVU is a state university. It thus must follow the US Constitution's Bill of Rights. The core idea of the right to free speech is viewpoint neutrality: the government can rarely, if ever, restrict or regulate speech because of its viewpoint. As the Supreme Court said in West Virginia State Board of Education v. Barnette (1943): "If there is any star fixed in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion . . . " Judge Cohen, author of the decision in Doe v. the University of Michigan (1987) that overturned that university's speech code, pointed out that the rejection of state orthodoxy is of special "significance in the university setting, where free and unfettered interplay of competing views is essential to the institution's educational mission . . . " That is just what the Office of Social Justice speech codes did--attempt to enforce an orthodoxy of opinions about race, gender, and sexual preference by threatening severe punishments for those who express certain viewpoints. As an illustration, the sexism code declared that a professor who says, "women never do well in my class," is guilty of sexism, but no example is given of, say, a women studies professor who says "men don't do well in my class." (Notice that both statements might be true!) Homophobic speech was singled out for punishmentthus threatening evangelical Christians who think that homosexuality is a sin--but no mention was made of evangelophobic or Christophobic speech.
2. Any speech regulation must be narrow. Broad regulations almost inevitably regulate protected speech. The codes on the OSJ web sites were incredibly broad. For example, the code on racism prohibited language that is "disrespectful" or "belittling," and never defined these terms. It would take little imagination to interpret much speech at this university as disrespectful and belittling, and threats to punish such speech run the risk of chilling student and faculty discussion of controversial issues.
3. Speech regulations must not be vague. A reasonable person should not have to guess at their meanings and wonder what is or is not prohibited. The OSJ codes could have won a vagueness award. Racism, for example was defined as "expressing an attitude of partiality for one race over another." What in the world does this mean? Does it mean that it's racist to prefer being friends with members of your self-identified group? That affirmative action is racist? That opposing affirmative action is racist? Try to imagine students and faculty freely discussing controversial racial issues with penalties for 'racist' speech hanging over their heads. Notice that the code punished attitudes not just expression, making it a thought code as well as a speech code.
4. The core idea that permeates the codes is that there is a right not to be offended. That idea is the death of free speech. If students and faculty fear that they will be punished if their remarks or ideas upset or hurt a listener or reader, then they may retreat to the safety of the bland and uncontroversial. Robust and wide-open debate necessarily causes offense to someone. That's why the Supreme Court has repeatedly ruled that offense, no matter how widespread or deeply felt, cannot justify government restrictions of speech.
If the speech codes are gone, who cares? Well, we don't know if they are gone. All we know is that they have been removed from the OSJ web sites, but do they exist elsewhere? Until we know that speech codes are dead forever, free speech remains in jeopardy at WVU. We therefore call for a public forum on the question of free speech and academic freedom. This will enable the university to publicly affirm its position on free speech and academic freedom. WVAS and the ACLU of WV would be pleased to participate in such a forum. While we applaud the university's removal of the codes on the OSJ web sites, more needs to be done. The university should place in the catalogue a statement that its free speech policy is to follow and uphold the Constitution's guarantee of free speech and free inquiry. As Supreme Court Justice Brandeis once said, sunlight is the best antiseptic. It's time for the sun to shine at WVU.
Daniel Shapiro is an Associate Professor of Philosophy at WVU, and President of West Virginia Association of Scholars