I am writing to express worries regarding the harassment rules that currently govern UW-Madison faculty and academic staff. In particular, I am concerned about those portions of the rules that deal with "demeaning verbal and other expressive behavior." I have enclosed a copy of them with this letter. In effect, these constitute a "speech code" for UW-Madison instructors. My concerns have to do with several aspects of this code, but all lead in one way or another to a single issue: To what extent does it give instructor notice as to what the university will do to them, in consequence of the instructor's own behavior?
Consider, for example, the case of an instructor in a lower division course dealing in contemporary social issues. She is planning a segment on free speech and censorship, and she is unsure about one of the readings she is thinking of assigning. It is a two-page excerpt, a transcript of a monologue from The Essential Lenny Bruce. In it, Bruce begins by asking his audience if there are "any niggers here tonight" and, immediately, mimicking their shock at his question. There follows a steady stream of very offensive racist and anti-semitic slurs, as Bruce pretends to be counting minority members of the audience. The epithets come faster and faster until they sound like a tobacco auctioneer and, finally, dissolve into stream-of-consciousness gibberish. The language that sounds so offensive at first passes through overuse into mere silliness and finally into meaninglessness. He then states his point: "the word's suppression gives it the power, the violence."
Obviously, the instructor is thinking of assigning this passage because she thinks it states an argument against certain sorts of censorship that is worth discussing: the argument that they tend to be self-defeating. What she is unsure about is whether, given Madison's stated policy on harassment, she will run afoul of the sort of rules this argument opposes.
If she consults the official statement of these policies, she might be comforted, at least at first, to note that choice of instructional materials is listed under "protected expressive behavior." After all, the slurs in the text are not her words, but the words of the author of the reading. The rules seem to recognize this distinction and mark it as important. Some of her initial discomfort, however, would certainly return if she reads the rest of the paragraph about instructional materials (Part IV:B.1.(a)). The "protection" it offers simply amounts to this: she could only be disciplined for her selection of course materials after a "hearing or review" finds that her claim that it is "germane to the subject of the course is clearly unreasonable." It does not mean that choice of course materials enjoys immunity from hearings and reviews. Apparently, in the event that a student complains about the readings, she might very well be compelled to undergo some such procedure. The protection involved merely means that she will not be punished for her choice, but only if the hearing or review finds that it might be germane to the subject.
This is a weak sort of "protection." The instructor, no doubt, can be fairly certain that her contemplated choice of course materials would pass the hearing or review, that she would not actually be disciplined for it, but the possibility of having to testify and defend her choice before some unspecified sort of tribunal is very daunting. The language in the Bruce monologue is, after all, highly offensive. That, in fact, is part of the author's point. The possibility of student complaints is a real one. Would hearings or reviews follow inevitably from any complaint, no matter how unreasonable? And, given the present rules, it may not be obvious on the face of it that complaints in this case would be unreasonable.
A greater cause for worry may lie in her own statements in class when it comes time to discuss this particular selection. Some students' feelings are liable to be inflamed by the assigned reading and they might be on guard, ready for her to cross the bounds of the permissible in some way or other. If she consults again the relevant rules, she might at first take some measure of reassurance from the fact that her own speech seems to have the same degree of "protection" that selection of instructional materials is given. All she has to do, the rule seems to say, is to "claim" that her speech was "an opinion or statement germane to the subject matter."
This reassurance, however, would likely evaporate if she were to read the relevant paragraph (IV: B.1.(b))to the end. There it says that "expressive behavior that falls within the prohibition of subsection C.2 below shall not be considered an opinion or statement germane to the subject matter of the course." Turning to C.2, she finds that she is subject to discipline if she "repeatedly uses epithets, comments or gestures that explicitly demean gender, race, cultural background, ethnicity, sexual orientation, or handicap condition..." Could "uses" mean "quotes?" Could she be subject to discipline because she "repeatedly" (perhaps, too often) quotes epithets from the Lenny Bruce assignment? "Repeatedly uses ... comments" might mean that she frequently makes offensive comments, not that she makes the same comment over and over again. She can imagine a student, incensed at having to read this material, making a list of suspect things she says during lecture and discussion.
Most worrying, perhaps, is the fact that "explicitly" does not mean "intentionally." It looks as if she cannot defend herself against disciplinary action by claiming, even truthfully, that she did not intend to demean anyone. What standard, she wonders, is to be used to decide whether her comments are demeaning?
The answer seems to be given in C.2.(a) and (b): the comments are to be regarded as demeaning if they are "commonly considered" by members of the relevant group to be "disparaging" toward them and if they create an "instructional setting" that the complaining student finds "hostile" or "intimidating" or "demeaning." That is, the standard lies not in her own intentions but in the feelings of people other than herself and the feelings of groups to which she, presumably, does not belong.
I submit that the rules give her seriously inadequate notice concerning what sort of behavior will subject her to discipline, and virtually no notice as to what sort of behavior will subject her to potentially invasive "hearing" or "review." After reflecting on all this, it would hardly be surprising if she dropped the idea of assigning the Bruce reading and opted instead for something safer, less controversial, and, in all likelihood, less interesting. I know that this was not the intention of the people who wrote the rules on harassment. It is, however, the likely result.
These rules constitute a speech code of a particularly loose and unrestricted sort. Such rules are sometimes restricted in such a way that they punish people only for intentional insults. As I have pointed out, the Madison rules are not restricted in that way.
Such rules are sometimes restricted to apply only to expressions that are specifically about the complaining individual. Under the Madison rules, the complaining individual might be the one who was referred to (C.2.(b).(I)) but they might also merely be a member of the group about which the comment was made (C.2.(b).(ii)).
Such rules are sometimes restricted by the use of a "reasonable person" standard. An expression, for instance, would only be deemed demeaning if a reasonable person would so regard it. Part of the point of such a restriction is to give fair notice to people who are supposed to follow the rule. I can hope to avoid doing what a reasonable person would find offensive because I have some notion of what is reasonable. The UW-Madison rules are not restricted in this way. Under them, the instructor in my hypothetical case would not be able to defend herself against the charges of an irate student by arguing that the student is being unreasonable. The student, on the other hand needs only charge that, reasonable or not, members of her or his group "commonly" do have this reaction. This would be a fact to which the student would have privileged access, which the instructor would often be ill-equipped to rebut or even predict.
Perhaps the most unique aspect of the Madison rules is the curious way in which they handle the distinction - common in First Amendment law - between protected and unprotected expression. They assert that the content of a lecture, the idea one is trying to communicate, is protected from interference - unless this content is demeaning to one of the groups named, in which case the comments are fully liable to investigation and disciplinary action on the part of the administration. It holds out a traditional liberal right - the guarantee that the content of intellectual discussion is immune to legal interference - and then confusingly takes it away.
The ultimate import of these rules, I fear, is that, in instructional settings at the University of Wisconsin, there is no longer any expression that is really protected.
Lester H. Hunt