A brief comment about the legal restrictions governing the regulation of speech on campus, since correspondence suggests there are some significant misunderstandings of the legal landscape. A few quick observations:
1. Private universities can, legally, do quite a lot of regulating speech if they want--especially of students, a bit less so of faculty due to contractual protections for academic freedom. But even with respect to faculty, private universities have considerable latitude.
2. Public universities are subject to some constitutional limitations, but they are always subject to the legal regime of Pickering and progeny that I discussed awhile back in connection with Salaita and the University of Illinois. To simplify, in the post-Pickering world, a state university can regulate speech if doing so is neecessary to discharge its central functions, e.g., teaching and research.
3. What that means is that even if it is generally unconstitutional in the U.S. to regulate "hate speech," a suitably tailored hate speech prohibition in a public university would likely be constitutional. So, for example, a prohibition on racist, sexist or simply vulgar abuse in the classroom, between students, or students and faculty, would be defensible on Pickering grounds: students can't learn, and faculty can't teach, if the classroom is disrupted by these kinds of verbal assaults. (A private university could do the same thing, and it seems to me any sensible concept of academic freedom should allow for this.)
4. By contrast, a state university could not issue a blanket ban on "racially insensitive" speech on campus; they could not even issue a blanket ban on "hate speech" on campus. The latter isn't sufficiently tailored to promoting pedagogical or research functions to survive legal challenge I suspect.
5. Most discussion of appropriate and inappropriate restrictions on speech on campus are not based on legal requirements, but on ideals of freedom of thought and inquiry that universities are (often uniquely) thought to stand for. (Recall that even Marcuse, in his critique of "repressive tolerance" for harmful expression, thought universities should be bastions of unbridled expression. [It would be fair to say he was not thinking about the Pickering issues, however!]) This is true, for example, of the widely cited University of Chicago commitment to freedom of expression: a university could provide less protection than Chicago without violating the law, and many do. Yale could, for example, forbid any students from shouting curse words at any faculty member. I would oppose such a blanket rule, because campuses include public spaces where discourse need not be tidy, polite or civil. But with respect to the ideal of freedom of expression on a university campus, speech and actions that have as their purpose to suppress or punish other speech or expression are incompatible with the Chicago-style ideal.
Recent Comments