The Volokh Conspiracy

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Why Eric Posner is wrong about speech codes


Eric Posner's Slate article arguing in favor campus speech codes on essentially paternalistic grounds has provoked this response from Jason Brennan at Bleeding Heart Libertarians:

[E]ven if all of the article's premises are true, it doesn't establish its conclusion…. An argument for regulation doesn't end with a demonstration of the need for regulation. It ends by showing that suitable regulation is actually feasible at sufficiently low cost.

It's one thing to say that College Kid Karly could use some paternalism. It's another to say any of the college administrators out there are the people to do the job. Given that perverse incentives college administrators face, and given the public choice problems inherent in staffing these offices, I don't want to give administrators the rights to create speech codes. It's one thing to say that if colleges were staffed by smart, benevolent, competent justice fairies, then the fairies should get to devise speech codes for students. It's another to say that actual administrators-people who have their own agendas, agendas often in conflict with the mission of the university or with good pedagogy or with students' interest-should do so.

To elaborate slightly, speech codes (and crackdowns on sexual behavior) are for the most part not demanded by students or faculty, but by administrators (sometimes in cahoots with a small faction of radical students) who have a symbiotic relationship with federal regulators that implicitly or explicitly encourage such crackdowns using the excuse of largely legally irrelevant civil rights laws. The feds get more control over the schools, bigger budgets, and satisfy particular political constituencies that support their existence and expansion. The internal university bureaucracies likewise get more control over campus life, bigger budgets, and, importantly, carte blanche to use vague, ill-defined rules to destroy academic careers for reasons ranging from ideological to venal.

Meanwhile, Posner suggests that libertarians should be happy that there is an educational market at work here. Yet, not a single university has, for esxample, challenged the Department of Education's new sexual assault guidelines, which are contrary to both what the law actually says and the policies most universities had adopted beforehand. This isn't the product of competitive marketplace forces at work, but of diktat from the government, sufficiently intimidating to cow even the Harvards of the world.