Campus Speech Codes

Definition: Restrictions on speech adopted by colleges and universities to combat hate speech

Significance: Such policies challenge traditional interpretations of the free speech clause of the First Amendment

Speech codes generally prohibit derogatory or pejorative remarks made on college or university campuses that are aimed at historically disadvantaged groups. Campus speech codes are a reaction to hate speech—demeaning words directed at members of historically disadvantaged groups, including racial, ethnic, and religious minorities, women, LGBT people, and people with disabilities. Hate speech, it is argued, is assaultive because it is directed intentionally to group characteristics. Hate speech is said to injure self-esteem, undermine self-confidence, alienate victims from their campus communities, and make it more difficult for victims to learn.

Rationale

Under this view, hate speech is not merely offensive but also psychologically and physically traumatic: It further oppresses disadvantaged groups and underscores their systematic subordination. Advocates of campus speech codes criticize absolutist legal protection of speech made without acknowledgment of historical context or widely disparate power relations in society. They argue that hate speech embodies a persecutory message of racial inferiority, directed against a historically oppressed group. Moreover, hate speech does not honor the primary purpose of the First Amendment, which is to facilitate the greatest amount of speech.

Instead, hate speech injures its victim, stops dialogue, and reinforces harmful social inequalities. As such, hate speech is not predominantly speech but conduct as harmful as a physical assault: Victims experience it as a blow that generates rage, fear, shock, and flight. Accordingly, advocates of campus speech codes argue that legal doctrine should either carve out a hate speech exception to the protections of the free speech clause of the First Amendment or adopt a contextual analysis that balances the harm hate speech inflicts on disadvantaged groups and the value of freely expressing all ideas, however distasteful.

Opponents of campus speech codes argue that censoring speech will not curtail racism or sexism. Moreover, they claim that such codes undermine the primary purpose of institutions of higher learning, which is to encourage wide intellectual freedom and open discussion of ideas.

Court Cases

In Chaplinsky v. New Hampshire (1942), the U.S. Supreme Court held that “fighting words which by their very utterance inflict injury or tend to incite an immediate breach of the peace” did not merit First Amendment protection. But in UWM Post v. Board of Regents of University of Wisconsin (1991), the court noted correctly that after the Chaplinsky decision “the U.S. Supreme Court has narrowed and clarified the scope of the fighting words doctrine to include only words which tend to incite an immediate breach of the peace.”

Courts invariably have viewed campus speech codes suspiciously. In Doe v. University of Michigan (1989), the United States District Court for the Eastern District of Michigan applied the free speech clause of the First Amendment to the University of Michigan’s hate speech restrictions. In response to an increase in racial intolerance and harassment, the University of Michigan prohibited individuals, under the penalty of sanctions ranging from formal reprimands to expulsion, from “stigmatizing or victimizing” individuals on the basis of race, ethnicity, religion, sexual orientation, gender, and a host of other categories. Administrative memos established that this policy was designed to sanction any remarks that seriously offended many individuals beyond the immediate victims and that thereby jeopardized the education climate of the campus.

The court acknowledged the state’s extensive power under the First Amendment to regulate discriminatory conduct, but reaffirmed long-standing doctrine that the state’s power to regulate pure speech is far narrower. Only “the lewd and obscene, the profane, the libelous, and the insulting or 'fighting words'” are legitimately subject to state regulation. While conceding that some racial epithets might fall under this domain under certain circumstances, the court held that the university could not sanction speech merely because a large number of people were seriously offended by it. After analyzing the University’s response to three complaints against students under its hate speech policy, the court held that the policy was overbroad in that it swept serious classroom comments made without malevolent intent under its domain. Moreover, the policy was unconstitutionally vague because its requirement that speech must “stigmatize or victimize” individuals on the basis of listed characteristics resisted precise definition. Accordingly, the Court held that the policy violated the free speech clause of the First Amendment and the due process clause of the Fourteenth Amendment.

Most campus speech codes prohibit only a select class of fighting words: Insults aimed at sex, race, nationality, handicaps, or sexual orientation. In R.A.V. v. City of St. Paul (1992), the U.S. Supreme Court held that such subcategories can be proscribed when the regulations pertain to conduct. The Court held, however, that the St. Paul ordinance was not aimed at conduct but at speech. A majority of the justices noted that the ordinance could still be constitutional if St. Paul could show that the ordinance was grounded on a compelling governmental interest and the content-based restriction on expression was necessary to further that compelling interest. Although the Court held that the ordinance was grounded on the compelling interest of protecting individuals from hateful discrimination, it also found that the means used were neither necessary nor the least restrictive way to serve that interest.

In Robert J. Corry v. Leland Stanford Junior University (1995), a California Superior Court declared the Stanford University speech code unconstitutional and issued a preliminary injunction against its enforcement. Although Stanford argued that its speech code did not prohibit ideas, the Court held that the speech code wrongly prohibited words that would only cause people to feel insulted and stigmatized.

Courts have thus legally tolerated hate speech as a cost society must endure to protect valuable speech from constitutional attack. Thus, campus speech codes invariably have been found to be unconstitutional at public institutions. Universities have turned to other means to discourage hate speech: stricter penalties for violations of student conduct regulations that are motivated by racism or bigotry, educational efforts aimed at greater mutual tolerance, and increased awareness of the effects insulting and stigmatizing speech have on victims.

Bibliography

Banks, James A. Encyclopedia of Diversity in Education. Los Angeles: Sage, 2012. Print.

Bollinger, Lee. The Tolerant Society. New York: Oxford UP, 1986. Print.

Gutmann, Amy. Democratic Education. Princeton: Princeton UP, 1987. Print.

Korwar, Arati R. War of Words: Speech Codes at Public Colleges and Universities. Nashville: Freedom Forum First Amendment Ctr., 1994. Print.

Magolda, Peter M., and Marcia B. Baxter Magolda. Contested Issues in Student Affairs: Diverse Perspectives and Respectful Dialogues. Sterling: Stylus, 2011. Print.

Matsuda, Mari, et al. Words That Wound. Boulder: Westview, 1993. Print.

Posner, Eric. "Universities Are Right—and Within Their Rights—to Crack Down on Speech and Behavior." Slate. Slate, 12 Feb. 2015. Web. 13 Nov. 2015.