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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.

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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.

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