The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
James Livingston, a professor at Rutgers (the state university of New Jersey), put up a Facebook comment:
OK, officially, I now hate white people. I am a white people, for God's sake, but can we keep them–us–us out of my neighborhood? I just went to Harlem Shake on 124 and Lenox for a Classic burger to go, that would my dinner, and the place is overrun with little Caucasian assholes who know their parents will approve of anything they do. Slide around the floor, you little shithead, sing loudly, you unlikely moron. Do what you want, nobody here is gonna restrict your right to be white.
I hereby resign from my race. Fuck these people. Yea, I know, it's about access to my dinner. Fuck you, too.
After Facebook removed the post for violating its Community Standards, he followed up with:
I don't get the FB threat thing against me because as far as I can tell, my page is intact, including my earnest, angry, and ridiculous resignation from the white race. As if I could! Calling Noel Ignatiev. Who am I kidding? The FB algortihm conjoins the words "race" and "hate" and designates the origin, which would be me, as a problem. OK, God knows I am. But not in this regard. I just don't want little Caucasians overrunning my life, as they did last night. Please God, remand them to the suburbs, where they and their parents can colonize every restaurant, all the while pretending that the idiotic indulgence of their privilege signifies cosmpololitan–you know, as in sophisticated "European"–commitments.
Rutgers received many complaints about this, and earlier this month affirmed the decision (by the Director of the Office of Employment Equity, Lisa Grosskreutz) that this speech violated the University's Policy Prohibiting Discrimination and Harassment, and was unprotected by the First Amendment. Livingston now faces possible disciplinary action.
As our readers may gather, I find nothing redeeming in Livingston's racist, vulgar rant, or in his fashionable but ridiculous attempt (which Rutgers rightly rejected) to redefine "racism" to exclude contempt and hatred for whites, or at least for whites that don't behave the way he thinks whites should behave. Many people I know and admire take the view—which I don't share, but which many decent people do adopt—that race-based affirmative action is a permissible, non-racist form of "benign" race preference. But there's nothing remotely "benign" about Livingston's racial hostility.
But Rutgers' justification for punishing Livingston's speech would of course not be at all limited to such racist diatribes. Rather, the decision rests on the theory that:
- "Rutgers has a core commitment to diversity, promising 'everyone joining us as a student, professor, or member of staff [that] [w]e at Rutgers will accept you for who you are. That promise of inclusiveness is the foundation of our strength as an academic institution. We believe that bringing diverse groups together into an inclusive community empowers individuals and gives rise to fresh, innovative ideas.'"
- "It is reasonable to predict that the university's core function of educating a diverse student body may be disrupted by Professor Livingston's public statements."
- Public reports of Livingston's speech "have inflicted reputational damage on the university" and on Livingston's department.
- "Given Professor Livingston's insistence on making disparaging racial comments, a reasonable student may have concerns that he or she would be stigmatized in his classes because of his or her race."
Yet nothing in this reasoning is limited to rants, to vulgarisms, to literal expressions of hatred, or even to race. The Rutgers policy equally applies to "religion, … national origin, ancestry, age, sex, sexual orientation, pregnancy, gender identity and expression, disability, genetic information, atypical hereditary cellular or blood trait, marital status, civil union status, domestic partnership status, military service, veteran status, and any other category protected by law."
Think how much speech can be said by the university to potentially "disrupt" the university's "educating a diverse student body," or "inflict reputational damage," or make some students feel "stigmatized"; just to offer a few examples,
- Speech that sharply criticizes particular denominations of Islam—or Scientology or Catholicism.
- Speech that argues that homosexuality is immoral or against God's plan.
- Speech that argues that transgender identity is a form of mental illness that should be treated through means other than accommodating it.
- Speech that argues that military service is complicity in murder.
- Speech that sharply condemns Israelis or Palestinians.
- Speech that argues that women tend to be biologically worse than men at various tasks (or vice versa).
- Speech that argues that particular genetic traits lead to violence or low intelligence or what have you.
- Likely speech that sharply condemns liberal Democrats or conservative Republicans or Socialists or Libertarians; because Rutgers is a public university, and public universities are generally barred by the First Amendment from discriminating based on political belief, the "any other category protected by law" likely includes political belief as well as religious belief; see, e.g., this Rutgers Sociology Department statement.
Nor would this be limited to speech that overtly expresses hatred. After all, people can feel "stigmatized" for messages that characterize them as foolish (e.g., "Scientologists are either dupes or frauds") or immoral (e.g., "Conservative Islam/Judaism/Christianity is sexist") or mentally ill (as with some arguments about transgender identity) or inferior in certain ways (as with some arguments about alleged biological sex or race differences), and not just those that start with "I hate …."
The report argues that government employee speech can be punished, despite the First Amendment, when it seems likely to cause sufficient disruption. But, first, even if the First Amendment allows university professors to be disciplined (or even fired) on these grounds, that doesn't mean it's a good idea for universities to adopt such a rule. Perhaps a professor's sharp criticism of certain religious ideologies, for instance, might alienate some students, or might cause loss of donations. But supressing speech on that basis would itself sharply disrupt the universities as places where people have to be free to discuss controversial, even offensive, ideas—and, as I said, the universities' rationale would apply to serious discussion of ideas and not just insults such as Livingston's.
Second, federal courts have recognized that the First Amendment protects even racially offensive speech by university professors, precisely because universities are supposed to be places where controversial views are allowed. Indeed, in Levin v. Harleston (2d Cir. 1992), a federal appeals court upheld a professor's First Amendment rights to express "denigrating comments concerning the intelligence and social characteristics of blacks" (there, in a book review, a letter to an academic journal, and a letter to the New York Times). What's more, the court held that even the modest reaction by the university there—"creat[ing] an "alternative" section of [the course that Prof. Levin taught] for those of Levin's students who might want to transfer out of his class"—was unconstitutional. Again, Levin's speech was more substantive than Livingston's, and not vulgar; but it certainly expressed views that many blacks would understandably find offensive. Yet it was still found to be constitutionally protected. See also Rodriguez v. Maricopa County Community College Dist. (9th Cir. 2010) (reaffirming that "[t]he desire to maintain a sedate academic environment … [does not] justify limitations on a teacher's freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms," even in a case involving racist speech by a faculty member, such as that "[t]he only immigration reform imperative is preservation of White majority").
The Rutgers decision cited a different appellate opinion, Jeffries v. Harleston (2d Cir. 1995), but that case involved the decision whether an administrator—a department chair—could be removed from his administrative position because of his anti-Semitic speech, while still keeping his faculty position without any disciplinary repercussions. The court said yes, precisely because this only had to do with the administrative role:
Finally, we note that an amicus curiae argues that we should not apply Waters at all because Jeffries, as a faculty member in a public university, deserves greater protection from state interference with his speech than did the nurse in Waters who complained about the obstetrics division of the hospital. We recognize that academic freedom is an important First Amendment concern. See, e.g., Keyishian v. Board of Regents (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."). Jeffries' academic freedom, however, has not been infringed here. As we held in the earlier Jeffries, and as Jeffries himself has argued, the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom.
And this makes sense: Administrators are appointed to their jobs not to themselves advance knowledge through their own research and public commentary, but rather to make the institution run more smoothly. If they make the institution run less smoothy, they can be moved back out of the administrative position for a variety of reasons—including that their administrative phiolosophy is inconsistent with that of their superiors, that their colleagues just don't like them and don't want to deal with them, and that their public statements (whether having to do with race, religion, politics, educational philosophy, or anything else) alienate prospective faculty members, donors, students, and the like. Yet it doesn't follow that faculty members should be fired or demoted because of such disapproval.
Finally, Rutgers' President had issued an express statement reaffirming faculty members' free speech rights (emphasis added):
Our University policy on speech is clear. All members of our community enjoy the rights of free expression guaranteed by the First Amendment. Faculty members, as private citizens, enjoy the same freedoms of speech and expression as any private citizen and shall be free from institutional discipline in the exercise of these rights. In addition, they also enjoy academic freedom of expression when functioning in their roles as faculty members. In all cases, however, the conduct of a faculty member must be in accordance with standards dictated by law.
This means that the university indeed has renounced any possible right to suppress faculty speech (at least outside-class speech, said in their capacity "as private citizens") on the theory that its content runs against the university's mission. Just as the "freedom of speech" of "any private citizen" allows him to post items saying that he hates whites (or disapproves of conservative Islam, or thinks homosexuality is immoral), so a "[f]aculty member" has "the same freedom" "and shall be free from institutional discipline in the exercise of [this] right." That, the President said, was "clear."
Rutgers' decision in the Livingston case directly contradicts this clear policy. After quoting the "same freedom of speech" passage, the decision argues,
The university does, however, demand that the conduct of a faculty member "be in accordance with standards dictated by law." Moreover, the First Amendment generally affords a public employer substantial latitude to discipline employees for speech, including speech via social media platforms. Indeed, constitutional protection only applies to statements that satisfy a three-prong test, discussed below [under which the employee's interest in free expression must outweigh the government's interest in efficient and effective provision of services].
But this is saying that faculty members do not enjoy the same freedoms of speech as any private citizen, and are not free from institutional discipline in the exercise of these rights—instead, faculty members are to be judged under the special First Amendment rule that gives the government more power over its employees than over private citizens. That is not consistent with the President's statement. (Properly read, the President's reference to "standards dictated by law" must refer to standards set forth equally for all people, private citizens as well as faculty members, such as bans on speech that constitutes a true threat of violence, or on speech that knowingly or recklessly libels people.)
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It's often tempting in such cases to focus just on the particular speech involved in that case. But decisions, whether by courts or by university administrators, don't just resolve a particular case—they also endorse principles that, in a system built on precedent and analogy, will be used in future cases. And, even more importantly, such decisions prevent cases from happening, by sending people a message that they had best avoid certain kinds of behavior.
Here, we have a tenured faculty member being threatened with punishment; the message will be heard loud and clear by other faculty members, but especially by juniors who aren't yet tenured. It will be heard by postdocs and graduate students who are even lower in the university hierarchy. It will also be heard by students in their capacity as students; formally, there might be more protection for students against administrative discipline than for employees, including faculty, but practically how likely is that?
And what they'll hear is not just "don't express overt hatred" or "don't call people shitheads because of their race"; rather, they'll grasp that the logic extends to any speech that the university sees as potentially "disrupt[ive]" or "stigmatiz[ing]" because it interferes with the university's "core commitment to diversity." A dangerous message, which Rutgers is quite deliberately sending.