This is the seventh in a series of “Provocations,” a LARB series produced in conjunction with “What Cannot Be Said: Freedom of Expression in a Changing World” a conference cosponsored by UCI, USC, and UCLA (January 22 -24, 2016). All contributors are also participants in the conference.
AT AN IOWA TOWN HALL MEETING last September, President Obama strongly championed campus free speech, even for “language that is offensive to African Americans, or … sends a demeaning signal towards women.” He also repudiated “the idea that you’d have somebody in government making a decision about what you should think … or what you should be taught, and if it’s not the right thought … that … they wouldn’t get funding.” He continued: “I guess that might work in the Soviet Union, but … [t]hat’s not who we are.” Education Secretary Arne Duncan, who was accompanying the President, endorsed these remarks with an unqualified “Amen.”
Apparently unbeknownst to the President and his Education Secretary, officials in their Department of Education’s Office for Civil Rights (“OCR”) have been doing precisely what they deplored: deciding what is not the “right” thought, and wielding the federal funding power to censor the very kinds of “offensive” or “demeaning” expression that the President explicitly defended against censorship.
Violating core First Amendment principles and Supreme Court precedents, which secure freedom even for “the thought that we hate,” starting in 2010 OCR has issued a series of mandates that strong-arm campuses into defining as punishable harassment a broad range of constitutionally protected expression about “race, color, national origin, sex, or disability.” Contrary to Supreme Court rulings, OCR considers expression to be harassing even if it is not directed at a specific individual, does not involve any intent to harm, and would not offend a reasonable person.
Directly violating these important First Amendment precepts, OCR has pressured campuses to define as punishable sexual harassment any expression about sex that anyone might find “unwelcome” – no matter how unreasonable, or even outright irrational, that subjective reaction may be.
While OCR pays lip service to free speech in some of its pronouncements, too many others encourage schools to err in favor of suppressing speech. Given OCR’s power to charge, investigate, and discipline colleges and universities – including by withdrawing the federal funding that is such a key part of their budgets – it is not surprising that even the best-endowed schools are capitulating to OCR pressure and defining as punishable harassment any expression about important but sensitive topics, including race and gender, that any student might find offensive.
As noted by many respected scholars and activists – including feminists and civil rights lawyers – this distorted definition of harassment not only deviates from Supreme Court decisions about what expression may constitutionally be punished as such, but also undermines OCR’s critically important anti-discrimination mission. After all, as campus activists in the Black Lives Matter and anti-sexual assault movements remind us, meaningful reform requires candid in-depth conversations about race, sex and gender.
President Obama made precisely this point in a November interview: “Being … an activist, involves hearing the other side and … engaging in a dialogue because that’s … how change happens. The civil rights movement happened because … the leadership … consistently … sought to understand the views, even views that were appalling to them, of the other side.”
President Obama likewise has repeatedly championed the time-honored First Amendment precept that the appropriate response to speech we might deem offensive or even hateful is not to suppress it, but rather to refute it. As he said at the Iowa town hall meeting: “Anybody … you disagree with, you should have an argument with them. But you shouldn’t silence them by saying, `I’m too sensitive to hear what you have to say.’”
Again, the President and his Education Secretary would presumably be dismayed to learn that their OCR has been pressuring campuses to enforce policies that do in fact suppress disfavored ideas – and that, consequently, also suppress the all-important debate about those ideas.
Under OCR influence, campus officials have exercised “zero tolerance” toward any potentially provocative expression about gender and sex, even as part of serious academic discussions. Officials have said that they are required at least to investigate all student complaints about comments that make them feel “uncomfortable” or “unsafe.” That was the reason that Northwestern University gave for carrying out a months-long Star Chamber-like investigation, in 2015, of feminist film studies professor Laura Kipnis because of an article she wrote in The Chronicle of Higher Education. Ironically, her article critiqued the distorted concept of sexual harassment that OCR has enforced.
Even beyond the many instances where constitutionally protected speech has been punished on campus, thanks to OCR edicts, there are countless instances where those edicts have triggered self-censorship. This point was made in 2014 by Harvard Law Professor Janet Halley, a prominent feminist scholar and activist. Harvard, which was then undergoing an OCR investigation, adopted OCR’s unconstitutionally overbroad concept of illegal sexual harassment. As Halley wrote:
[To the OCR], … academic freedom, the very lifeblood of education and research, appear[s] not to register as important at all. … Classroom instruction [and] academic debate … can and will … become the basis of complaints and sanctions. … Chill is already happening. Teachers at Harvard, alarmed by the policy’s expansive scope, are jettisoning teaching tools that make any reference to human sexuality.
To again quote President Obama’s town hall meeting statements, OCR’s tactics “might work in the Soviet Union, but … [t]hat’s not who we are.” The President has pledged to vigorously exercise executive power during this late stage of his administration. All defenders of academic freedom should urge him to do so to ensure that OCR’s overreaching rules are replaced with speech-respectful policies that do actually reflect “who we are.”
Nadine Strossen, a professor of law at New York Law School, has written, lectured, and practiced extensively in constitutional law, civil liberties and international human rights. She served as President of the American Civil Liberties Union from 1991 to 2008, and was the first woman to head the nation’s oldest and largest civil liberties organization. The National Law Journal has named Strossen one of America’s “100 Most Influential Lawyers.” Her book Defending Pornography: Free Speech, Sex, and the Fight for Women’s Rights was named by the New York Times a Notable Book of 1995. She will participate in the conference Freedom of Expression in a Changing World: What Cannot Be Said.