Shortly after being named Emory's new president, William Chace told The Atlanta Journal and Constitution that he was "fully devoted to the principles of free speech and having universities be freer than the rest of society."
Unfortunately, the institution he has come to lead does not appear to share that liberal devotion. In fact, it has a policy on "discriminatory harassment" that infringes on the right to freedom of speech taken for granted and legally protected outside this institution. The policy proscribes, among other things, any oral or written conduct, i.e. speech, directed against any person(s) "because of their race, color, national origin, religion, sex, sexual orientation, age, disability or veteran's status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating or hostile environment" for that person or group. An amendment added to the original policy slightly muddles the issue by suggesting that, impressions notwithstanding, academic freedom shall be "allowed" to all members of the community.
The legal record leaves no doubt that the policy infringes on the fundamental right to freedom of speech: federal courts have struck down all challenged speech codes at public institutions, even those more narrowly drawn than ours. If Emory were a public institution, the courts would find what one court said in 1993 about Central Michigan: "The expanse of the suppression of speech made possible by (its policy) is as remarkable as it is illegal." Even private institutions have been held accountable; most recently a California court, applying relevant state law, struck down Stanford's limited speech restrictions as unconstitutionally broad and based on content. The courts' position reflects the Supreme Court's consistently expressed tenet that "(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."
Why should a university try to institute a policy that blatantly harms fundamental rights? The usual defense goes like this: some minority groups are exposed to offensive or hostile speech but cannot easily defend themselves; the institution must protect them; therefore, we need a code to proscribe certain kinds of speech. The legal scholar Mari Matsuda has argued, based on America's history of racism, that speech restrictions must focus more specifically on racist hate speech against historically oppressed groups. Such arguments, still unlikely to pass constitutional muster, display a surprising faith in the use of institutional authority to advance minority interests. They also show that many people on the left who embrace them have a short memory and overlook the unintended consequences of their position; not long ago, institutions used speech restrictions to muzzle unpopular leftists.
The main problem, however, is that Emory's policy as written does not implement the strongest argument in its favor. It encompasses general categories of speech, but does not protect any one group. A member of a majority group can easily use it against offensive minority speech. Not surprisingly, one of the few publicly discussed cases involved a complaint by a white male faculty member about abusive language used by a gay activist. The administration could decide to use the code exclusively to deal with complaints brought by members of certified minorities, but that would add insult to constitutional injury by violating the manifest letter of the code. The policy is incoherent: if applied as justified, it requires dishonesty in university administration; if applied as written, it cannot fulfill its defenders' purpose and exposes unorthodox minorities to repressive sanctions.
At a time when many in the academy rightly call for the inclusion of new voices and perspectives, speech codes like ours threaten the vibrant intellectual pluralism that should result from such inclusion. Historically, the right to speak up was a cherished minority right, itself a mark of inclusion; today, minorities challenging the conventional wisdom and the status quo, in a manner that members of a majority find "hostile" or "demeaning," risk administrative sanction. In the words of our alumnus C. Vann Woodward, a university must encourage all its members to think the unthinkable and challenge the unchallengeable. Deviating from such hard-won liberal principles, Emory instead follows the Orwellian suggestion of its general counsel that we must suppress speech in order to promote it. Taken seriously, this means that Emory considers the liberal vision of the university bankrupt, to be replaced by some more authoritarian alternative.
In a recent issue of The Chronicle of Higher Education, the Harvard legal scholar Randall Kennedy comes close to defending such a position. Private universities, he thinks, can dedicate themselves to values higher than freedom of expression and suppress what they consider bad and false in order to exalt what is good and true. That way, they also avoid bringing in messy legal disputes. Perhaps, then, Emory should follow the example of Bob Jones University. Kennedy's colleagues at Harvard, meanwhile, wisely have declined to follow his advice. Their Free Speech Guidelines state that judgments related to freedom of expression "will be consistent with established First Amendment standards." That is the least Emory should guarantee as well.
Fortunately, Emory has another chance to review its speech code. Last year, the SGA debated the policy at length, found that it harmed free expression, and voted to demand its repeal. The University Senate then took up the issue, but after several sessions declined to support proposals for reform or repeal. Instead, an ad-hoc committee was formed to study the matter and report back, which it will do at this month's Senate meeting.
The moment is important, for Emory faces a choice: to keep or change an incoherent and illiberal policy that would be unconstitutional if applied by a public university. Unchanged, the policy would tell all future faculty, staff and students (and their parents): "Anything you say here can be held against you. Proceed at your own risk." A change would indicate that we want what our counterparts at public institutions, as well as Harvard and Yale, already have. It would express Emory's commitment to liberal principles, lift a burden from controversial speech by all members of the community, and finally make Emory "freer than the rest of society." The choice should not be hard.
Frank Lechner is an associate professor in the sociology department.