Working on the Speech Code:

Can We Agree?

As a University committee tries to initiate a public dialogue regarding whether to revise or abolish the faculty speech code, I would like to suggest, as a basis of this discussion, three points that I hope most of us can agree on, no matter what our political views or what we think of codes in general. I should say, first and immediately, that what the following comments are not meant to apply to professors who deliberately insult students, in language that expresses what the now-defunct Stanford speech code called "visceral hatred or contempt." I am concerned only with the far more common case of the professor who unintentionally offends students. Such cases do occur all the time, and they raise completely different issues from deliberate verbal abuse. The university should have some way of dealing with such cases, and a good part of what the speech code committee is supposed to be doing is to figure out what the best sort of response is.

The first point is this: For problems of this kind, informal responses are preferable to formal ones. A conversation is better than a trial. One reason for this is the fact that, in a liberal democracy, people who are subjected to formal investigations and the threat of discipline for unintended verbal slights tend to think that their rights are being violated. They very often think of themselves as symbols of freedom, and not as someone who has somehow offended someone and may need to learn to act differently. This point may be obvious - in fact, I hope it is - but it is worth mentioning because present code offers no solutions for unintended offense other than formal and punitive ones, and seems to discourage informal ones.

Second, Informal responses should be non-punitive. For instance, if a problem is dealt with by the professor's department or college rather than the administration, it should not be done through investigatory committees that threaten the professor with punishment. The present code says nothing about this practice, which has already damaged morale in some University departments, and seems to permit them.

Third, There must be clear, effective institutional limits to punitive authority. Again, this may be obvious enough, but we need to ask whether the University now has such limits. Admittedly, the current code does place some limits on what the University may do to a professor. In some cases (it is not entirely clear which) it says that the university will not investigate a professor for saying something offensive unless the offensive behavior is done "repeatedly," and unless the behavior was repeated in spite of the fact that the student has asked the professor to stop doing it. It also says that, under certain circumstances the "hearing or review" to which an accused professor is subject will follow a certain, rather stringent rule of evidence. The trouble with this is that the University may not be observing these limits on its behavior. In the cases I know of in which the University has investigated professors, whether on the level of department, school, or administration, these restrictions have been entirely ignored, never even being mentioned, as far as I know, by the any of the people involved.

When Greg Vincent, head of the office that has the unenviable task of enforcing the University's speech policies, appeared before the committee last month, he said, according to my notes, that the speech cases his office has investigated where actually "pursued under state and federal laws," such as Title VII, and would have been handled just as they were if the speech code were abolished. Concerning the role of that the code actually plays in his office's investigations he said, cryptically, "We would interpret this rule in light of Title VII." This suggests that he thinks of himself as really enforcing Title VII instead of the University's code.

Evidently, Title VII simply says that discrimination is illegal. It does not say anything classrooms and professors as such. In particular, it says nothing about what administrators may or may not do to anyone. The code, however, does. The code is far more restrictive on administrative behavior than Title VII is. If administrators are "following" Title VII instead of the code, then they are ignoring these restrictions.

If the University needs a code, then it needs one that adequately recognizes these three points. We need to talk about whether the present code does so, and about what sort of code, if any, would do so.

Lester H. Hunt is Professor of Philosophy at UW - Madison. Tomorrow (Wednesday) he will be introducing Professor Glenn C. Loury, who will speak on campus speech codes and related issues at 7:30 PM, 3650 Humanities.