Code revision fall short of what’s needed

Donald A. Downs

Two years ago, noted Harvard Law School Professor Alan Dershowitz called UW–Madison’s faculty and staff speech code “the worst faculty speech code in the country” because of its failure to protect academic freedom. In an effort to fix the code, a special committee recently submitted reform recommendations to the University Committee. Nine voting members signed a majority report, and eight voting members (including all three students) supported a minority report.

Donald Downs

Though both proposals protect academic freedom more fully than the present code, the majority position falls far short of what is needed. Discipline can ruin reputations and careers. It should apply only in the most egregious cases: when an actual intent to derogate or debase specific students on the grounds of race, gender, sexual orientation, etc. is demonstrated (a standard similar to that which governs adjudication of the equal protection clause of the Constitution), when actual harm is shown (a requirement consistent with free speech law), and when no possible pedagogical purpose exists. In less egregious cases, we should rely on the informal mechanisms that have served us for years.

The majority proposal would allow discipline if an instructor derogated and debased a specific student without a “reasonable pedagogical justification,” regardless of the absence of intent to harm or the absence of actual harm. In addition, the majority (using somewhat obscure language) would provide punishment for general epithets or “teaching techniques” presented to the class that derogate or debase, “unless the instructor has a reasonable pedagogical justification for using the teaching technique in question rather than an efficacious technique that would not be derogating and debasing.”

The majority’s standard would expose honest and conscientious, yet politically controversial, speech to discipline in situations of interactive teaching that arise frequently. Let us take a case similar to one that split the committee down the middle. Suppose a gay student presses a professor’s conclusions concerning the constitutional rights of homosexuals, and asks the professor if she thinks there is a rational basis for laws prohibiting homosexual sodomy. “Yes, I think there is a moral basis for such laws,” the professor replies. The student responds, “So my acts could be proscribed on moral grounds?” “Yes,” the professor answers. The majority proposal provides no assurance that this statement would be protected, however germane to the subject matter. (Indeed, during our debates the majority consistently argued that such a comment should place a professor in jeopardy.)

The professor’s intent may have been completely honorable-to be intellectually honest. But the majority’s proposal renders this defense irrelevant. At the very least it would create what free speech jurisprudence terms an impermissible “chilling effect” on speech the First Amendment protects. This logic encourages mechanical, cowardly teaching-something that is hardly respectful of students’ capacities and the mission of the university. And note that a differential result based on political viewpoint (another red flag under the First Amendment) is at play here, for no such jeopardy would attach if the professor declared, “Homosexual sodomy should receive full constitutional protection.”

Broader concerns also influenced the minority’s position. First, the committee discovered virtually no evidence of instructors at Madison debasing and derogating students in the classroom. There is simply no need for a code that goes beyond an intent standard. Second, this university and others have fallen prey to several notorious applications of codes in recent years, as reported in Isthmus, Lingua Franca, the Chronicle of Higher Education, and other sources; a recent book, The Shadow University: The Betrayal of Liberty on America’s Campuses, by Alan Kors and Harvey Silvergate, shames universities in chronicling the widespread abuse of codes across the land.

The recent events surrounding the shouting down of Ward Connerly and the intimidation of the Badger Herald staff by angry students (actions condoned by some high-level university officials and professors despite the chancellor’s principled opposition) reveal that the environment on this campus is still hostile to intellectual freedom, lending little assurance that a code would be applied in a manner dissenters can trust. If we truly believe in academic freedom, the only responsible options are the minority proposal or outright abolition of the code.

Downs is a professor of political science, law, and journalism and mass communication.