Minority Report: Ad Hoc Committee on Prohibited Harassment Legislation

September 24, 1998

Academic freedom, both for students and professors, is the lifeblood of the University of Wisconsin-Madison. We believe that in almost every circumstance, the university should aggressively protect the free exchange of ideas, no matter how controversial or repugnant such ideas may be. We have reached this conclusion after nine months of studying the current faculty legislation and struggling with the problems inherent in regulating speech in a university environment dedicated to the discovery, testing and transmission of knowledge and ideas.

Nevertheless, we recognize that academic freedom has limits, and that no instructor has a right to degrade and debase students merely for the sake of doing so. Our alternative proposal is an attempt to more clearly define the area of speech that is so heinous it ought not be protected, while clearly leaving intact all aspects of academic freedom and free speech. While we strongly agree that the majority's recommendation is better than the current legislation, we part company with the majority because we do not believe the language of the proposed legislation sufficiently protects expression in instructional settings.⁽¹⁾

The heart of the proposed revision, Part III.B.1&2, distinguishes protected from unprotected expression in instructional settings on the basis of the reasonableness of the instructor's asserted pedagogical justification. To avoid discipline, an instructor must prove that he or she not only has a pedagogical justification, but that it is reasonable. On its face, the "reasonable pedagogical justification" standard has considerable appeal. In practice, as our committee discussions often illustrated, it is difficult to predict whether in any given situation an instructor's asserted justification will be regarded as reasonable.

We find proposed section III.B.2 to be particularly problematic because it would require an instructor to demonstrate more than a "reasonable pedagogical justification" for using untargeted derogatory expression as a teaching technique. An instructor would have to show that he or she has a "reasonable pedagogical justification for using the teaching technique in question rather than [emphasis added] an efficacious technique that would not be derogating and debasing." But it would seem almost always possible to choose some less offensive way to make a point. Such a standard encourages caution. It permits discipline for expression that might, at most, be characterized as insensitive. It is a standard that makes predictable outcomes difficult and subjective.

Part III.B.1 and 2 regulate the content of speech in a setting where the interest in protecting expression is extraordinarily strong. In fact, these sections in some contexts may operate to regulate expression because of its viewpoint. The majority's proposal would make punishable a professor's "comment" in "addressing a specific student" that "clearly derogates and debases the student on the basis of the student's gender, race. . ." To use one of the examples in the proposed revision, suppose in a class dealing with race, gender and intelligence, a student who is a member of a minority group that fares less well in the book's findings engages the professor in discussion of the conclusions of The Bell Curve. "Are you saying these results likely apply to me and my ability?" the student asks. If the professor says "yes," she is placed in jeopardy under the majority standard. If she responds that "The Bell Curve is baloney!" she would be in no jeopardy whatsoever. The possibility of such differential results is utterly inconsistent with the majority's laudable commitment to protection of all ideas, however controversial.

Content, and even viewpoint, restrictions are not automatically unconstitutional. But in general, to survive constitutional scrutiny, a content regulation must be justified by a compelling interest and employ the least restrictive limitations possible. To be sure, important interests underlie the legislation. We would point out, however, that the committee found very little evidence of abusive expression by instructors, that all three student members opposed the revision (and voted at one point for repeal of Parts III and IV altogether), that both student newspapers urged repeal of the legislation, and that the ASM Shared Governance Committee also voted unanimously to recommend repeal. Even the associate dean of students told the committee that, although he felt some type of legislation was desirable, he remained concerned that codes may not be effective and may become counterproductive. He emphasized that any code must be very clear.

To us, it does not seem justifiable to support legislation that could discourage and punish a fairly broad range of speech in the absence of overwhelming evidence that speech is a serious problem. Nor do we believe the revised legislation proposed by the majority is sufficiently targeted and clear to limit academic freedom appropriately in instructional settings.

Given that we acknowledge a need for Parts I, II and IV of the revised legislation and our agreement that at some point academic freedom must yield to the need to protect students from harassment, we offer the following alternative to Part III.B.1 & 2. Because the basic rule we suggest is more clear, there would be no need for the examples contained in the majority's recommendation.

"Expression germane to the subject matter of a course, including information, the presentation or advocacy of ideas, the instructor's opinions and assignment of course materials, enjoys a presumption of protection and is not subject to discipline, however controversial or repugnant such expression may be. This presumption may be overcome only if a complainant can prove with convincing clarity that the instructor has intentionally derogated and debased a specific student or students on the basis of the student's or students' gender, race, religion, ethnicity, sexual orientation or disability, and that instructor had no pedagogical justification for doing so."

We also favor revising Part III.B.3.d to say

"the expression seriously detracts from a student's capacity to act as an equal participant in the class."

We believe these standards satisfy the requirements of "compelling interest" and "least restrictive means." Clearly, the University has an interest of the highest magnitude in assuring that instructors carrying out the University's educational mission do not make meaningful intellectual interaction between themselves and students impossible by verbally abusing and harassing students for no pedagogical purpose. To permit such abuse would undermine the "sifting and winnowing" the University so highly values. And our standards carve out a specifically defined zone of expression that is clearly beyond the pale of what anyone could argue is within the realm of academic freedom -- intentional conduct utterly unrelated to the educational mission of instructors. We believe this approach has a number of significant strengths and advantages:

• it assumes that speech is protected and explicitly places the burden on the complainant to prove that it is not, rather than leaving the instructor in the position of having to demonstrate that the expression ought to be protected. This is consistent with standard First Amendment jurisprudence. The primary burden is on the party who would restrict speech.⁽²⁾
• it requires proof at the level of "convincing clarity," which is to say significantly more than the slight tipping of the scale required by "preponderance of the evidence" but something less than the "beyond a reasonable doubt" standard used in criminal cases.⁽³⁾
• it requires proof of intent to derogate and debase specific individuals, thus immunizing from discipline remarks that are merely thoughtless or inadvertent. It seems fundamentally unfair to us to permit discipline of an instructor who genuinely has not intended to derogate and debase a student. We would note that proof of "intent" is not necessarily as simple as taking an instructor's word. All relevant circumstances, including the expression itself, may be taken into account. The revisions favored by the majority do require repetition of the expression, but repetition does not necessarily demonstrate intent to derogate and debase a specific student.⁽⁴⁾
• it requires proof that the instructor had no pedagogical justification for using such language. This approach draws a clearer line than the "reasonable pedagogical justification" approach because it requires a simple yes-no determination rather than permitting the second-guessing of an instructor's pedagogy or balancing of the utility and the harm of the choice of expression.⁽⁵⁾
• it requires proof of harm, not mere speculation that harm is likely to occur.⁽⁶⁾

This standard is likely to protect more expression than the majority's proposed revision and to confine discipline to the most egregious cases.⁽⁷⁾

It is true that the majority's proposal would prohibit speech that all of us would find repugnant and without value, but we fear it goes much further than that. The result may well be the silencing of speech that is crucial to free and robust academic inquiry, and therefore counter to the mission of this University. On the other hand, most, if not all, of the examples proposed by the majority would likely turn out the same under the rule we propose, but without the same degree of uncertainty. Frankly put, we would rather see some degrading and debasing expression go unpunished than risk the investigation or deterrence of expression that turns out to be protected.

Nor does our approach leave aggrieved students without any remedy. Any instructor whose expression is, for example, perceived to be egregiously racist, misogynistic or homophobic, is likely to become the subject of public attention and controversy, and be answerable, ultimately, to student and public opinion and criticism. Further, our recommendation presupposes that students have academic freedom rights to express their disagreements with professors, especially in areas of intellectual controversy. Except in extreme situations such as those covered by our recommendation, the exercise of such freedom by students is the most appropriate response to controversial ideas. Such exercise should be encouraged by the University.

The threat of punishment is unlikely to deter the committed racist, misogynist or homophobe. It is likely to deter those who are most likely to be unnecessarily cautious. To minimize undesirable deterrence and yet permit punishment of the most egregious cases, we respectfully disagree with the majority's recommendation with respect to Part III.B.1 & 2 and Part III.B.3.d. We support the remainder of the recommended revisions.

Steven Bauman

Charles Bentley

Rebecca Bretz

Donald Downs

Robert Drechsel

Amy Kasper

Jason Shepard

William Steffenhagen

1. Part III of the proposed legislation is clearly distinguishable from Parts I, II and IV. Only Part III focuses exclusively on speech in instructional settings and on the relationship between instructors and students. Parts I and II address clearly defined sexual harassment as opposed to Part III's broader sweep. And Part IV addresses derogating and demeaning expression in non-instructional, work-related settings where academic freedom is not directly implicated. We note that the U.S. Supreme Court has recently been subjected to both praise and criticism for according differential treatment under federal law to sexual harassment claims depending on whether teacher-student harassment was involved or whether an employer or employee harassed another employee. The Court's decisions during the past term did not involve academic freedom, but reflected acknowledgment that Title VII of the Civil Rights Act did not govern teacher-student harassment.

2. While the majority may be technically correct in noting that the burden of proof regarding the unreasonableness of the instructor's pedagogical purpose falls on the party seeking discipline, in fact there is little doubt that an instructor will need to provide evidence that his or her purpose was reasonable. One of history's hard lessons is that cases involving the claims of minority or dissident speech will often not be adjudicated in environments free of prejudice or emotion. The history of intellectual freedom counsels making standards governing the presentation of ideas as precise and protective as possible. The type of ad hoc balancing of speech and harm inextricably entailed in the majority's "reasonableness" standard is alien to both the spirit and the letter of First Amendment law and jurisprudence. In fact, the majority reply acknowledges that the reasonableness standard entails such balancing and second-guessing of teaching: "Also, in a disciplinary proceeding, the reasonableness of an instructor's claimed justification would be judged by the nine faculty members who constitute CFRR." And under a reasonableness standard, the instructor's good faith belief that she or he was acting reasonably is irrelevant.

3. Notwithstanding the majority's assertion that "convincing clarity" refers to no criterion recognized in law, this is precisely the standard required by the United States Supreme Court in public-figure libel cases and was first articulated in New York Times v. Sullivan some 34 years ago. The Court has re-emphasized this First Amendment requirement several times in libel cases, specifically comparing it with "preponderance of the evidence."

4. The majority misconstrues both the minority's standard and its implications. Our alternative requires evidence of intent to derogate and debase, not intent to harm. When criticizing the minority proposal, the majority treats intent to derogate and intent to harm as identical, yet elsewhere in its reply quite correctly points out that even intentionally derogating expression ought to be protected if there is a reasonable pedagogical purpose for using it. That is, intent to derogate and intent to harm are distinct. The majority appears to argue that repetition of expression after a request to stop either demonstrates intent or is unnecessary if an intent standard is included. Neither is inherently true. The majority is correct that the repetition requirement addresses the question of whether a remark a student considers debasing and derogating was initially accidental or inadvertent. But we see the issue is far more complex. One can easily imagine, as the majority notes, a situation in which a student complains to an instructor about expression the offensiveness of which was not and still is not apparent to the instructor. At this point, the instructor faces a potentially difficult decision: either repeat the expression and hope for the best, or seek an advisory opinion as to whether the expression is protected under the legislation. The latter is a sort of voluntary censorship. But given the ambiguity often pervading disputes about speech, we are skeptical that definitive advice is likely. Under the majority standard, the instructor can be certain, however, that her or his intent will be regarded as irrelevant and that the preliminary inquiry may well focus on the instructor's pedagogical justification. It may not be possible to eliminate such uncertainty altogether, but it can be minimized. We believe the minority's alternative will do so.

5. Although the minority's standards are clearly intended to be more protective of intellectual freedom in the classroom, the majority's assertion that the minority's proposed "no pedagogical purpose" and "intent" requirements may give instructors absolute immunity is incorrect. The majority reply suggests that under the minority standard, an instructor need only articulate some pedagogical justification, "even a totally absurd one that no one would credit in any way," to escape discipline. On the contrary, a strategy of articulating a justification that is so "totally absurd" that "no one would credit it" would hardly be likely to immunize an instructor automatically. Intent can be proved regardless of a defendant's protestation to the contrary. Countless individuals have been convicted of crimes requiring intent even though they never confessed or acknowledged their intent or mens rea because the weight of the evidence to the contrary was overwhelming. Likewise, we assume that a "totally absurd" claim of pedagogical purpose could be found utterly lacking in credibility. Of course, such proof will not be easy, nor should it be.

6. The majority reply consistently treats debasing and derogating expression as though it automatically causes harm. Neither logic nor evidence support such a view. Indeed, the majority's proposed legislation requires no proof of harm whatsoever; it requires proof only that harm is "likely." The majority overtly favors punishment without evidence of intent to debase and derogate, and without evidence of actual harm. With this we cannot agree. It may well be, as the majority asserts, that "[t]here are many instances in the law in which such disregard for the welfare of others is a sufficient mental condition for the imposition of punishment." But regulation of expression is not one of them. The courts interpreting the First Amendment have not only been loathe to permit punishment of expression in the absence of harm, but often equally reluctant even in the presence of tangible harm.

7. We concede that the minority standard would be difficult to meet, and that is the way we believe it should be. Even the minority standard will undoubtedly require the use of judgment and discretion in application. But the majority's standard would permit third parties to impose their judgment as to how an instructor ought to have behaved if only he or she had, in their view, behaved reasonably. The instructor's actual state of mind is, under such a standard, irrelevant. This difference of approaches reflects a fundamental difference between us and the majority; we wish to minimize the subjectivity of judgment that the majority values.

In the end, the minority's position rests on a simple sense of justice: that professors should not be subject to the momentous and painful process of discipline for speech in instructional settings unless they have intended to do something very bad. A faculty speech code should be reserved for extreme cases, leaving other cases to alternative forms of resolution. Far from confining discipline to "egregious personal insults" (a position the majority consistently rejected in committee deliberations), the majority would allow the wheels of the disciplinary process to turn in cases where no harm was caused or intended. Indeed, that majority standard would allow punishment even in cases in which a professor's comments were made in intellectual good faith, not with sinister intent.

This difference points to a final disagreement. The majority and minority agree that under some circumstances an instructor's allegedly degrading and debasing expression should be protected. But we believe the majority's approach too readily assumes that an instructor's motivations for engaging in such expression are likely to be ignoble or selfish, that to require "intent" would inherently let many egregious offenders escape. The majority worries, for example, about the instructor who "insists on his 'right' to say whatever he wants, regardless of the harmful consequences to students." The minority's approach, on the other hand, inherently presumes that instructors, with few exceptions, are likely to push the limits for reasons of intellectual or pedagogical conscience ­ reasons worthy of intellectual respect. The minority standard, therefore, carries a stronger presumption in the instructor's favor than does the majority standard.