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.

For some 15 dark years, American academia has acquiesced in, if not demanded, the suppression of its most fundamental rights. Speech codes--the "verbal conduct" restrictions in colleges' "harassment" policies--have been pervasive on our campuses.

During this time, there have been a few minor free speech victories. On some campuses, defenders of liberty modified the worst aspects of speech restrictions; on others, students or faculty used media attention and ridicule to force administrators to abandon the most embarrassing parts of their codes. At a few state schools, students sued for their constitutional rights and won. Now, however, a faculty has itself voted to restore its freedom of speech. On March 1, 1999, the Faculty Senate of the University of Wisconsin at Madison surprised almost everyone by voting to abolish the code that had regulated professors' speech for more than a decade.

For a year and a half, Wisconsin had been weighing only two choices: to keep or to modify the code. No one thought that there could be a successful third option: free speech. Liberty's at least temporary victory in Madison, won with the telling involvement of students, had its own context, its revealing contingencies, and, above all, its heroes.

A Winnowing Tradition

The difficulty of restoring free speech at Wisconsin is ironic, given the school's dramatic history of academic freedom. In 1894, Oliver E. Wells, a member of the state Board of Regents, charged Professor Richard T. Ely with teaching and advocating "socialism." The board appointed a committee to examine the charges.

Ely was not a stalwart defender of the values that his case came to represent. He allowed that if the charges were true, he should be dismissed, but he denied that he was a "socialist" at all. The committee, however, went beyond Ely's agenda. It not only exonerated him, but proclaimed the value of a campus where one could express oneself without fear: "Whatever be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found."

That commitment to "fearless sifting and winnowing" survived the state's unlamented senator, Joseph McCarthy, but it could not survive political correctness. By 1989, the threat to academic freedom at Wisconsin came from the administration and faculty. Equating "racist" and "sexist" speech with discrimination by race and sex, a faculty committee dominated by law school professors drew up a "code" that banned "racist or discriminatory comments, epithets or other expressive behavior," in "non-academic matters" that were either "directed at an individual or on separate occasions at different individuals." The code gave specific protection to discussions of group characteristics in the classroom, and it explicitly exempted the faculty.

The law professors reassured the university that the code was wholly constitutional, and Chancellor Donna Shalala (now President Clinton's secretary of health and human services) enthusiastically and successfully urged the Board of Regents to adopt it. A group of students, however, supported by the American Civil Liberties Union, challenged the code, and a federal district court declared it manifestly unconstitutional in 1991.

As a result, most Wisconsin faculty members assumed that they enjoyed full freedom of expression within the law. They were wrong. They were still governed by a separate policy, "Prohibited Harassment: Definitions and Rules Governing the Conduct of UW-Madison Faculty and Academic Staff."

This code, drafted in 1981 and given its final form in 1989, prohibited "harmful" speech in both "noninstructional" and "instructional" settings. The latter category, which included speech in classrooms, laboratories, on field trips, and in academic offices, was more protected. Let us, then, examine the policy in its least repressive guise.

Discipline and Punish

The UW code forbade "demeaning verbal and other expressive behavior." The phrase expressive behavior included conduct "through which a faculty or academic staff member seeks to communicate with students…[including] but not limited to the use of visual materials, oral and written statements, and assignment of visual, recorded, or written materials." The policy claimed to "protect" the "selection of instructional materials," any "opinion or statement germane to the subject matter of the course in which the behavior occurred," and "expressive behavior related to teaching techniques."

The code existed, however, among other reasons, precisely to permit a faculty member to be charged and "disciplined" for those specific "protected" behaviors. Thus, one's selection of instructional materials lost protection if the claim of germaneness was "clearly unreasonable." The claim of germaneness itself lost protection if it, in turn, was "clearly unreasonable." One's teaching techniques lost protection if "an appropriate hearing or review [found] clearly unreasonable the…claim that the objective cannot be accomplished as effectively by techniques less likely to cause harm."

Everything lost protection if the hearing rejected the claim of protection and found that the behavior was a) "commonly considered by persons of a particular gender, race, cultural background, ethnicity, sexual orientation, or handicap to be demeaning to members of that group"; b) occurred after a prior request not to engage in that conduct "or conduct of substantially the same kind"; and c) the conduct either "interfere[d] with" the student's academic work or made the instructional setting "hostile, or intimidating, or demeaning to members of the group of average sensibilities."

Wholly unprotected, also, were "epithets, comments, or gestures" that demeaned on the basis of "gender, race, cultural background, ethnicity, sexual orientation, or handicap condition," subject, again, to the double criteria of what a group found "disparaging to members of that group" and either interference with "learning or other academic performance" or the creation of a "hostile or intimidating, or demeaning" environment. The policy did not require any proof of intent in instructional harassment.

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

Undergraduates are potentially the greatest force for restoring liberty on campuses, once they understand the patronizing nature of special protections and selective enforcement. There were, in fact, four diehards for outright abolition on the ad hoc committee--Downs and all three of the students: Jason Shepard, president of the senior class, an openly gay student who had come out in a column in the mainstream campus newspaper and a member of the board of directors of the Lesbian, Gay, Bisexual, Transgendered Campus Center; Amy Kasper, an Asian-American undergraduate; and Rebecca Bretz, a law student.

Those who worry about the future of liberty should take heart from these students. Shepard joined the committee, he tells me, wholly open-minded, but, like the other two students, he kept asking for a "justification" for the code. He was amazed by how little justification the proponents could offer. By the end of three weeks, he and the other two students arrived at a common position, "without caucusing," because of their skepticism about why anyone would want to silence anyone else at a university. "At first," Shepard says, "a lot of faculty members wrote us off, just assuming that being students, we blindly would support a speech code, especially because we were gay, female, and Asian-American female."

In March 1998, Shepard made a motion for outright "abolition" of the code; it attracted only two votes in addition to those of the students and of Donald Downs. From that moment on, Shepard felt obliged to abandon abolition and to work for the most free-speech-friendly committee report possible.

For Shepard, the year's deepest lesson was the gulf between the rhetoric of "minority" student leaders and the views of the constituencies they were supposed to represent. For example, the Ten Percent Society, a gay and lesbian organization on campus, voted in November 1998 on the majority and minority reports of the ad hoc committee. It split down the middle, barely favoring the majority report. On the gay student listserve, many students wrote about the essential value of free speech. The president of the society, however, sent a message saying that now that a vote had been taken, she expected them all to show solidarity and to end any opposition to the stronger version of the code. She informed Shepard, he told me sadly, that he was a disgrace to every gay student at Wisconsin.

To Shepard, this incident signaled "how this small number of leaders is so out of touch with actual minority students." In his words, "There is a handful of self-appointed leftist activists who claim the right to speak for every minority on this campus." Far from being representative of those minorities, these activists "are some of the most authoritarian, oppressive people I've ever met." They try to intimidate a campus and chill debate: "Anyone who challenges their views is called `sexist,' `racist,' or `homophobe,'" he says.

"Although they claim to be fighting for equality and freedom for minority students," he concludes, "they silence any opposition within their minority group." Shepard saw the issue in straightforward terms. "It makes me cringe to defend bigots," he says, "but that's part of what defending the First Amendment is all about."

Amy Kasper also had a problem with so-called student leaders. They testified to almost "universal support" of the code, she tells me, when, in fact, the student body appeared deeply divided on the issue. In the end, she observes, the student government and all minority associations voted to endorse the majority report, but only 3 percent of Wisconsin students had bothered voting for the student government, while the minority groups were divided and had low numbers involved on this issue. Like Shepard, she also thought that everyone simply assumed that the two of them, "students from historically oppressed groups," instinctively would support the code. They were denounced as "dupes" and "traitors" for opposing it.

Kasper had fought against the code from the beginning. Believing that free speech was indispensable to fundamental rights and academic freedom, she was shocked to discover that a faculty code existed at all, and she believed it an obvious violation of the federal and state constitutions. Further, she says, fighting bigotry by means of oppression was useless. Indeed, she insists, it "has the opposite effect; it makes people bitter; and it is a horrible assault upon the conscience."

"The tide is changing," she says. She is sure her generation understands the sad irony of fighting for equal rights with arbitrary power: "History constantly has shown us that every time you give a coercive authority the power to censor, it is abused, and minority groups suffer the most."

Like Kasper, Rebecca Bretz was convinced from the start that there was something absurd about a speech code at a university. Early on, she notes, the three students were in agreement with each other, and, a rarity on committees with a faculty presence, were the most insistent voices. "We all wanted to know what our professors really thought. We didn't want them to be muzzled or gagged."

For Bretz, the fundamental issue was deeper than the legal or semantic technicalities that the committee kept debating: "How could we, as students, expect to have freedom of speech ourselves without our faculty having it?" In her view, the ability to hear both what other people believed and how they spoke was an essential part of her own freedom.

Once the motion for abolition failed, Bretz, Kasper, Shepard, and Donald Downs worked to get the best possible minority report. As Bretz explains, "We fought for abolition, but it was a futile effort." The question became, "What is the next best thing?" Her decision was to work to get the code as close as possible to freedom of expression. She found the situation on the ad hoc committee inherently ironic. The issue was faculty freedom, and the loudest voices on its behalf were those of the students. "We were somewhat surprised at this," she says dryly.

Professor Robert Drechsel, chairman of the committee, tells me one could not overemphasize the "extraordinary importance" of the students on the committee: "The students forced us to consider the most fundamental issues, and they put repeal on the table. They had a great impact by saying, `You're protecting us, but we don't want that protection.' They were articulate and courageous."

When Professors Stood Up

In November 1998, the University Committee endorsed the majority report and passed it along to the Faculty Senate for consideration. The Faculty Senate would discuss it at meetings in December and February, then vote on the report in March 1999. The December meeting of the Faculty Senate, however, surprised all parties and changed everything. One after another, in a wholly uncoordinated event, close to 20 faculty members spoke, almost all standing to reject both the majority and minority reports and to call for abolition, pure and simple. To the astonishment of both sides, the issue stirred not politically correct passions but passions for liberty. Individuals who never had spoken up publicly or expansively on free speech and academic freedom now found their voices; senators who skipped routine meetings now attended to make their views known.

Charles Cohen, a professor of history, began by speaking for the majority report, declaring that "the minority report allows instructors to derogate students with impunity," but he was virtually alone in defending the majority. Indeed, most speakers opposed the notion of any code at all.

Ken Thomas, a psychologist, observed that in one generation Wisconsin had gone from standing for academic freedom to standing for political correctness. He noted that "speech codes are totally inconsistent with the sifting and winnowing tradition," adding that "guests on the Jay Leno show probably fear censorship less than UW professors."

Biochemist Lawrence Kahan reflected on the fact that he used the example of drunken drivers in his classroom: "If you are an alcoholic…you may feel this example derogates you on the basis of your disability." Ken Mayer, a political scientist, proclaimed a speech code similar to a flag burning amendment, calling them both inappropriate.

Movingly, Javier Calderon, a professor of music who described living under dictatorial regimes in Latin America, expressed his dismay that colleagues would limit their own freedoms, describing the Bill of Rights as something "precious." Silvia Montiglio, a classicist, expressed her confidence in students' intellectual powers and denounced the sponsors of speech codes as "ideologues."

The meeting changed everyone's sense of what was possible. In the campus paper, Downs observed that the Faculty Senate "spoke with the language of free men and women," and he noted that "we could become the very first university in the country to take back a code by a faculty vote rather than a court order."

Jason Shepard recalls: "I sat there in awe. I was so moved by it." It made him realize that there was a world in Wisconsin beyond the debates of the previous 18 months. "On the ad hoc committee," he says, "I was brainwashed into thinking that this was how the faculty thought. At the December 1 Faculty Senate [meeting], clear, rational thinkers analyzed the issues on the merits."

Lester Hunt, a senator, tells me: "I was completely taken by surprise. It was a sea change of public opinion. But no one was more surprised than the pro-code people." The meeting put abolition back on the table, at one extreme, and many authors of the minority report now felt that their position was a compromise that could satisfy everyone. Few truly believed that full abolition was a possibility.

A Niggardly Display of Evidence

The next meeting of the Faculty Senate, also for purposes of discussion, was on February 1. The pro-code forces tried mightily to win the argument about the requirements of harassment law and to discover campus cases that would justify the code. They did neither. Speaking for the majority of the ad hoc committee, Carin Clauss, a law professor adamantly in favor of a strong code, took up much of the meeting explaining both proposals, urging the greater clarity of the majority report, and insisting that the university would be exposed to dreadful liability if it did not have a code.

On January 27, Charles Cohen, the pro-code historian, had written, "as a spokesman for the Majority," to the dean and associate dean of students, asking for information about possible relevant "debasing and derogating expression in the classroom." The deans took their best shot, but most of their examples further alarmed anyone who cared about free speech: "Professor showed slides and made comments that made female students uncomfortable"; "Complainant feels faculty makes light of homophobia during lecture"; "Complainant reports prevalent homophobia and heterosexism in a language class"; "Faculty allegedly made insulting reference to the student's country (other than the U.S.)." Presumably, an insulting reference to the United States would not have been actionable.

Minority group leaders also had been searching for two months for incidents to relate, but their offering blew up on them. Amelia Rideau, a junior English major and vice chairwoman of the Black Student Union, told the Faculty Senate at its February meeting how a professor teaching Chaucer had used the word niggardly (she was unaware of the related controversy, the week before, in Washington, D.C.), and how he continued to use it even after she told him that she was offended. He was trying to explain its meaning--Chaucer used the term--but classmates, she complained, knew what it resembled. "I was in tears, shaking," she told the faculty. "It's not up to the rest of the class to decide whether my feelings are valid."

Rideau's plea was a reality check. If the proper use of a Chaucerian term while teaching The Canterbury Tales could be construed as harassment of a student who did not know the word's spelling or meaning, then the code was teaching some interesting expectations indeed. Many "abolitionists," as they now were called, believe that Rideau's speech, widely reported, was the turning point, setting the stage both for greater attendance at the March meeting and for the final vote. John Sharpless, a history professor, asked, "What other words are to be purged from our language? Thespian?"

On February 2, 1999, the Wisconsin State Journal editorialized, "Thank you, Amelia Rideau, for clarifying precisely why the UW-Madison does not need an academic speech code….Speech codes have a chilling effect on academic freedom and they reinforce defensiveness among students who ought to be more open to learning."

The Politics of Compromise

On the evening of February 1, Harvey Silverglate, who co-authored The Shadow University with me, addressed an eager audience on the Wisconsin campus, sponsored both by the student chapter of the ACLU and by the student Coalition for Conservative Leadership. He told them that a faculty speech code at a public university was "legally so absurd as barely to justify a debate" and that the selective enforcement characteristic of such policies undermines the essential doctrine of equality before the law. The vote between the majority and minority reports, he argued, was meaningless, because both positions were unconstitutional. There was only one option when it came to speech at the public University of Wisconsin: freedom.

Hoping to salvage something, and desperate not to fall too far behind the faculty on this, the University Committee now reversed itself and proposed abolition to the Faculty Senate meeting that would occur on March 1. The anti-code minority of the faculty on the ad hoc committee, however, feared that they could not secure a victory without the support of their pro-code colleagues, and they almost lost sight of their actual goal. Working with the committee majority and with members of the University Committee, they labored to find compromise language that might command the overwhelming support of the Faculty Senate. Faculty politics can do such things to otherwise rational people.

Near victory, the anti-code faculty members on the ad hoc committee did not want to insult code co-author Ted Finman, and at a University Committee meeting a few days before March 1, Finman succeeded in getting two clauses added to what was supposed to be the abolition proposal. All expressive behavior by faculty members was permitted unless 1) it constituted illegal discrimination or 2) it was unprotected by the First Amendment and by academic freedom.

This, however, was a breach large enough to drive an entire engine of repression through, because in leftist "critical legal theory," any expression that "demeans" the powerless is illegal discrimination, and nothing that creates "a hostile environment" is protected by the First Amendment or by academic freedom. The seemingly sensible "compromise" in fact invited prosecutions that still would be decided on a case-by-case basis.

Free Science, Free Speech

By the time the Faculty Senate considered this motion on March 1, it was beset by ambiguous and confusing language and by a profusion of tortured amendments. Clause after clause was proposed to modify Finman's language, and no one quite could explain what anything meant. By everyone's account, the meeting was in chaos, until it was rescued by William Onellion, a professor of experimental physics whom almost no one knew.

Onellion proposed an amendment putting a period after the declaration abolishing the code and deleting everything after that--namely, Finman's two conditions. Someone asked who would make the decisions necessitated by Finman's language. A pro-code professor, Bernice Durant, probably secured the abolitionists' victory by answering "the Office of Equity and Diversity Resources," which many faculty associated with such things as an earlier failed campaign to demand sensitivity training of any faculty member with a federal research grant. Downs argued that the office was always sympathetic to a complainant. The Faculty Senate approved Onellion's abolitionist amendment by a vote of 71 to 60.

Onellion is amused to find himself a hero in his colleagues' eyes. "I'm not a very political person," he tells me. "I have better things to with my life expectancy than campus politics." An elected senator, he had decided to attend his very first meeting because he wanted to vote to abolish the speech code. After 75 minutes of parliamentary wrangling, however, "I was bored out of my mind."

In Onellion's view, there were only three choices: retention, revision, or abolition. At a certain moment, "I saw that I could get what I wanted by putting a period at the end of a sentence and deleting everything that followed it." When a proponent of the code described his amendment as "just another ploy by the abolitionists," it took Onellion "three minutes to realize what abolitionist meant" in this context. Raising a point of personal privilege, he said that since his family descended from pro-Union Louisianans, he had no trouble being called an abolitionist. "I can play the game of cheap rhetorical tricks also," he observes.

I ask Onellion why he got involved in this controversy. He replies that scientists, unlike colleagues in the social sciences and humanities, are not "preoccupied" with social and political issues. Professors of physics are probably some of the most liberal voters in the country, he continues, but where "issues of free speech and censorship are involved," they part company with the politically correct: "It's a question of both principle and practicality. You can't get at the truth without pushing people and arguing wholly freely."

Scientists, he says, have a frame of reference for all this: "We remember the fate of science in Nazi Germany and of Lysenko in the Soviet Union." He draws a moral that professors would do well to learn: "If government has the power over discussion, the search for truth ends." Onellion reminds us why it is so important for the scientists at our universities to join the struggle for liberty.

Will the opponents of free speech find ways to stop this revolt? Will the vice chancellor for legal and executive affairs, the chancellor, or the Board of Regents block the repeal on legal grounds? When the University of Wisconsin's Office of Affirmative Action declares the abolition of the speech code to be a violation of employment law, will the administration force the faculty to take their university to court? Stay tuned.

In the meantime, as student Amy Kasper says, the tide is changing. Keep your eyes and ears on the undergraduates, for from them may come the most auspicious changes of all. I ask Jason Shepard how he felt after the vote for abolition. He says, "We were a couple of students who truly changed the face of this university. To play a small role in defending free speech is humbling. You have to spend your lifetime chipping away at oppression and censorship."

Amen. At Wisconsin, they did more than chip away.

Alan Charles Kors ([e-mail]), a professor of history at the University of Pennsylvania, is co-author, with Harvey A. Silverglate, of The Shadow University: The Betrayal of Liberty on America's Campuses (www.shadowuniv.com) published by The Free Press.