Cracking the speech code

When the University of Wisconsin sat down to evaluate its repressive faculty speech code, nobody expected free speech to win. Here's how it happened.

Alan Charles Kors from the July 1999 issue

(Page 2 of 5)

Of Codes and Kangaroo Courts

The code was breathtakingly vague and offered frightening discretion to any panel charged with implementing it. Professors were investigated for violations of both its instructional and noninstructional provisions, drawing them into long, Kafkaesque procedures where they had no clear knowledge of the charges against them, no confrontation with accusers, and no rights to formal hearings. In short, at a state university, they found themselves both investigated for their speech and deprived of even minimal due process.

A professor of art history, during a period of heated curricular and ideological debate within his department, was treated derisively by students on the other side. Annoyed at a repeated, mocking salutation, he replied to them, "Sieg Heil!" As a result, he was investigated for anti-Semitism and other "isms" for a year. A professor of philosophy used the term Injuns in a class, and he too was investigated. A professor of history failed to use gender-neutral language, and he, too, was subjected to an inquisition. In the course of such proceedings, professors were asked intrusive questions about their friendships, their views of sexuality, their inner beliefs, and their values.

Defenders of the code now point to the fact that none of these illiberal, unconstitutional, indecent, and chilling investigations led to a single conviction, thus demonstrating the code's acceptability. In fact, its acceptance was largely a product of ignorance. Almost all the professors at Wisconsin with whom I have spoken were unaware for many years that the faculty rules had survived the court's rejection of the student code.

How could the code operate without widespread public knowledge? As is true on most campuses, professors investigated under it simply never spoke to their colleagues about their difficulties (or, if they did, they swore them to secrecy). The issue might be "speech," but the charge might be sexual or racial "harassment," and no one wants such an accusation known. One professor did retain a successful lawyer, who got the school to end its investigation and to pay $12,000 to $15,000 in a confidential settlement.

As the code gradually became known from 1993 on, however, several colleagues of the accused professors became uneasy, and they found it impossible to remain silent.

Free Speech Talks Back

Madison, unlike most American campuses, has had several conspicuous defenders of liberty across the political spectrum. Historian Stanley Payne, for example, formed a Faculty Committee on Academic Freedom and Rights to serve as a legal defense fund for those caught in the web of the speech code. Longstanding opponents of political correctness, such as economist W. Lee Hansen, political scientist Donald Downs, and members of the Wisconsin Association of Scholars all lent their voices to the cause of curbing politicized abuses of power.

Lester Hunt, the professor of philosophy investigated in 1992 for using the term Injun, had been astonished when the Office of Affirmative Action gave him a copy of the speech code. Though exonerated, Hunt began to address his colleagues frequently about their real and potential plight under this policy. He also brought speakers to campus to denounce the code, including Alan Dershowitz, who termed it one of the worst he had ever seen, "an abomination."

By 1997, these activities had produced one convert on the University Committee, an elected faculty executive committee of six that organizes much of the agenda of the Faculty Senate, serves as a liaison between that Senate and the administration, and, in theory, works for the interests of the faculty. (The Senate has about 200 members--many of whom do not attend meetings--elected by disciplinary constituency.)

Mary Anderson, a professor of geology, was struck by Payne's, Downs', and Hunt's activities, and convinced her colleagues on the University Committee to open discussions with faculty members who believed that the code trashed free speech rights. They established an ad hoc committee to examine the code and recommend possible revisions to the Faculty Senate. Ten voting faculty members served on the ad hoc committee; they would be joined by four academic staff members, named by the staff governing body, and by three students, named by the student government.

The issue was profoundly divisive, but no side succeeded in achieving strategic superiority in the makeup of the ad hoc committee. Of the four staff members, three supported some strong version of the code; one supported its serious revision. Of the 10 voting faculty members, only one, Donald Downs, was a known critic of the policy, and a few were known to be strong supporters. It was not obvious how the other faculty members would vote. The student government interviewed students who desired to serve on the committee, and by all accounts it chose the three who seemed the best informed about the issue, without pressing them on their substantive views.

At the last minute, the University Committee appointed an author of the speech code, law professor Ted Finman, as a nonvoting member of the ad hoc committee, ostensibly to provide it with "expertise." Instead, he dominated its meetings--which were public--convincing many that the university would suffer legally and financially if it did not keep something close to the current code.

Throughout 1997 and 1998, the ad hoc committee met some 40 times. In October 1998, it divided (at first 10-7 and eventually 9-8) between a majority and minority report, issuing both. The majority report called for "reasonable pedagogical justification" for, among other things, a "comment" or "technique" that "debases and degrades students in the class." The minority report charged that such a criterion left too much to the subjective discretion and temper of a hearing panel, and it asked simply for "pedagogical justification." The two sides also differed, without much clarity, over the burden and degree of proof required to convict.

Out of the Mouths of Undergraduates