October 29, 1998
Introduction
The legislation advanced by the Ad Hoc Committee on Prohibited Harassment Legislation significantly improves upon the University's existing rules, first adopted in 1981, by explicitly respecting the principles of academic freedom, adding illustrative examples, delineating procedures to adjudicate formal complaints, and suggesting means for resolving differences between instructors and students informally. In its dissent, the "Minority Report" claims that the "Report of the Ad Hoc Committee on Prohibited Harassment Legislation" [the "Committee Report"] puts academic freedom at risk, criticizes the "Committee Report" on several other counts, and revises a portion of the proposed bill. We believe that this "Reply" will show that these claims and criticisms have no basis in fact or reason, that the "Committee Report" respects academic freedom rather than endangering it, and that the minority's alternative would provide students with virtually no protection against expression that attacks them personally on the basis of their race, gender, or other personal characteristics. By way of introduction, we briefly summarize the main points developed in the following pages.
The "Minority Report" perverts the Committee Report's proposed rules by implying that they leave a substantial degree of expression unprotected and thus would silence "robust academic inquiry."1 In point of fact, the "Committee Report" vigorously defends academic freedom. It unconditionally and absolutely protects all ideas germane to a course, no matter how controversial, repugnant, or unpopular they may be. Only two narrowly delimited categories of expression can ever be a possible basis for discipline: 1) epithets and comments addressed to a specific student that concern that individual and that derogate and debase him/her on the basis of gender, race, religion, ethnicity, sexual orientation or disability; and 2) teaching techniques and epithets concerning a group if the technique or epithet debases and degrades students in the class. Moreover, even these categories of expression are protected unless they lack a "reasonable pedagogical justification" for their use and a number of other conditions are satisfied (see infra, pp. 3-4, 7-8).
The minority claim that the "reasonable pedagogical justification" standard used by the Committee will involve subjective judgment that poses a danger to academic freedom. As it turns out, however, the minority proposal would require the same kind of subjective judgment. While we would prefer a completely objective standard, we do not believe that any set of rules can achieve this goal (see infra, p. 11). Moreover, we trust the nine faculty members who constitute the Committee on Faculty Rights and Responsibility (CFRR), which judges disciplinary matters, to protect academic freedom.
The minority would make intent to debase and degrade a student a condition for discipline and claim that it would be unfair to impose discipline in the absence of such intent. We believe it is wrong in principal to require intent, since doing so would protect an instructor who lacked such intent but knowingly acted with utter disregard for the harmful consequences of his/her conduct. In many situations, the law considers such a state of mind to be a sufficient mental predicate for punishment. Thus we would allow discipline in such a situation without regard to whether harm was actually intended (see infra, p. 6). The minority would further weaken protection for students by leaving instructors completely free to use teaching techniques and epithets concerning a group no matter how derogating or debasing they might be to the race, gender, etc., of students in the class (see infra, pp. 13-14). For example, an instructor in a U.S. history course who refers to the Chinese laborers building the trans-continental railroad simply as "chinks" could not be disciplined under the minority proposal.2 Finally, the minority claim superiority for their approach to the burden and degree of proof required in disciplinary proceedings, but analysis shows these claims to be spurious (see infra, pp. 14-16).
The heart of academic freedom lies in protecting the interchange of ideas no matter how controversial or distasteful they may be. The "Committee Report" provides such a safeguard fully and completely. It secures instructors' right not only to introduce but also to advocate even ideas that most people might find repellent. But the concept of academic freedom in the classroom is a meaningless abstraction unless it comprehends not only the instructor but also the students whose presence creates the very arena which incarnates that freedom and whose own rights to freedom of expression presuppose and dignify the instructor's. Not everything that might be said in a classroom can lay claim to the protection that academic freedom affords. The purpose of academic freedom is to protect the free exchange of ideas, not the utterance of personal insults, epithets, and teaching techniques that a) degrade students on the basis of race, gender, etc., b) have no reasonable pedagogical justification, and c) have the effect of stifling student expression. The rules proposed in the "Committee Report" fully protect an instructor's right to advance ideas while limiting only expression so derogating and debasing to students that it effectively muzzles their voice. Such a position secures academic freedom for all.
The Range of Protected Expression under the "Committee Report"
Just what expression is protected-and what could be a basis for discipline-under the rules proposed in the "Committee Report?" The brief answer is that all but a tiny fraction of faculty expression is absolutely protected, and that the expression which could be a basis for discipline has little if anything to do with academic freedom. The minority's description of the Committee proposal mistakenly and misleadingly paints a very different picture. The "Minority Report" asserts that the Committee proposal "distinguishes protected from unprotected expression in instructional settings on the basis of the reasonableness of the instructor's asserted pedagogical justification."3 This assertion suggests a broad, far-reaching limitation on the expression of controversial ideas, namely, that such ideas are not protected unless an instructor offers a pedagogical justification. The truth of the matter is that the rules proposed in the "Committee Report" provide absolute, unconditional protection for all ideas and materials germane to a course, as the following provision in the proposed rules clearly states:
All expression germane to the subject matter of a course, including the presentation or advocacy of ideas and the assignment of course materials, is protected and not subject to discipline, however controversial or repugnant such expression may be.4
To cite one of the Committee Report's illustrative examples, in a course dealing with race, gender and intelligence, both an instructor's statement that The Bell Curve's conclusions reflecting adversely on the intellectual capacity of African-Americans are essentially correct, and his/her advocacy of the idea that women have less capacity for conducting scientific analysis than do men, are germane to the course and thus not subject to discipline, even though such statements may call into question the intelligence of some students taking the class.5 Only two categories of expression can ever be a basis for discipline:
Moreover, expression that falls within these categories is still immune from discipline unless certain limiting conditions are satisfied: the expression must be "clearly and patently not protected" under the provisions noted above and, in addition, 1) the instructor has repeated the expression after having been asked to refrain, 2) the expression is considered by the University community to be seriously derogating and debasing, and 3) the expression is likely seriously to detract from the student's ability to act as an equal participant in the class.8
The critical distinction between the Committee's proposal and the minority's lies in their respective approaches to these categories of speech. Before turning to this matter, however, it is important to consider why any limit on such expression is appropriate.
We believe that the University should do what it can, consistent with its commitment to academic freedom, to provide a learning environment that does not disadvantage students by subjecting them to the psychological harms that inevitably accompany the debasing and degrading expression that has for far too long been directed against women, racial, religious and ethnic minorities, gays and lesbians, and disabled individuals. We also believe, however, that we must accept the harmful psychological impact that flows from the expression of ideas that debase these groups, since any effort to limit such ideas would strike at the heart of academic freedom. In our judgment, however, the harms caused by personal insults and teaching techniques that debase and degrade the gender, race, etc. of students in a class and that serve no real pedagogical purpose need not be tolerated in the name of academic freedom.
Comparing Definitions of Unprotected Expression
This section analyzes how the rules recommended by the Committee and by the Minority treat the two categories of expression described above. This analysis will show, on the one hand, that the Committee's rules protect students without infringing academic freedom and, on the other hand, that the minority proposal: 1) does not provide superior protection for academic freedom, 2) imposes no limit whatsoever on one category of degrading speech, 3) sets limits on another category of expression that are in fact wholly illusory, and 4) would thus deprive students of the protection they deserve.
A. An instructor, in addressing a specific student rather than the class in general, uses an epithet or comment that concerns that specific student and derogates and debases that student on the basis of his/her gender, race, religion, ethnicity, sexual orientation, or disability. Expression falls with this category only if it "is, and is commonly considered by the University community . . . to be, seriously derogating and debasing."
It is important to note that this provision covers only expression about the specific student being addressed. It does not limit expression concerning a category of persons (a gender, race, etc.). Such expression, if germane to a course, is absolutely protected, as are all other ideas. As already noted, although ideas that debase, say, a racial group will be hurtful to students who belong to that group, the harm caused by such ideas must be accepted in order to preserve academic freedom.
An egregious insult directed at a specific student, assaulting the student because of his/her race, for example, is quite another matter. It attacks the very being of the student to whom it is addressed. It inflicts the deepest kind of psychological wound. It poisons the educational environment in which the student must operate and can seriously impair the student's capacity to study and learn in an effective fashion. The "Minority Report"seems to disagree. "The majority," it contends, "consistently treats debasing and derogating expression as though it automatically causes harm. Neither logic nor evidence support such a view."9 Do the minority really doubt that epithets and comments that debase and degrade a student have harmful psychological consequences? Such consequences are well recognized in the scholarly literature,10 and anecdotal evidence is readily available. Ask members of racial, ethnic and religious minorities about the feelings they experience when addressed with epithets or comments that label them as inferior or hateful. Ask women how they feel when addressed with slurs that attack them because of their gender.11 Indeed, anyone who has been the subject of such an attack understands that the connection between such personal insults and harm is virtually "automatic."12
Harm, of course, is only one important consideration. Whether a limit on such expression would infringe academic freedom is crucial. Though there will be few cases in which personal attacks on a student's race or gender can be justified on the basis of academic freedom, the possibility that such expression could serve a legitimate teaching purpose should not be ignored. How, then, do the Committee recommendation and the minority proposal identify the relatively rare situations in which these sorts of direct, personal insults ought to be protected despite the hurt they inflict?
1. The Committee Recommendation
Under the Committee's recommended rules, if the instructor has a "reasonable pedagogical justification" for addressing a student with an epithet or debasing comment about that student's race, gender, etc., the expression is protected. We believe this position strikes the appropriate balance between the need to safeguard academic freedom and the need to protect students from personal insults that attack their race, gender, etc. After all, if the justification offered for addressing a specific student with an epithet that degrades the student's race or gender is found not reasonable,13 why should the use of the epithet and the harm it inflicts be allowed?
The minority alleges that the use of "reasonable" makes for uncertainty and "encourages caution."14 If we were talking about the expression of controversial ideas, we would surely oppose any rule that required instructors to be cautious. But the expression here in question is the use, in addressing a specific student, of an epithet or comment that degrades that student's race, gender, etc. Perhaps caution in the use of such expression is appropriate. Moreover, if the justification for such usage is in doubt, an instructor has ample opportunity to resolve the matter without risking discipline. As noted above (supra, p. 4), discipline is possible only if, among other limiting conditions, expression is repeated after a request not to do so. An instructor who wishes to repeat the expression but wonders whether his/her justification would be deemed reasonable can consult with colleagues and even ask CFRR for an advisory opinion on this matter. Moreover, in a disciplinary proceeding, the reasonableness of an instructor's claimed justification would be judged by the nine faculty members who constitute CFRR; if more than two CFRR members believe that the administration has failed to prove that the justification is unreasonable, discipline cannot be imposed.
2. The Minority Proposal
Under the minority proposal, the sort of egregious personal insult we are here considering would be protected and not subject to discipline unless it were shown both 1) that the instructor lacked a "pedagogical justification" (rather than a "reasonable pedagogical justification") and 2) that the instructor "intentionally" derogated and debased the student, that is, intended not only to utter the expression in question, but also to harm the student, i.e., to derogate and debase. Insofar as these requirements differ from the Committee's recommendation, we believe that the minority proposal emasculates the effort to protect students and permits clearly improper faculty conduct. Consider the following:
a) "Pedagogical justification." Under the minority proposal, an instructor could be subject to discipline only if he or she had "no pedagogical justification" for using a particular expression. This standard, the minority argues, would eliminate the subjective judgment involved in the Committee's use of "reasonable pedagogical justification." In our response to an earlier version of the Minority Report,15 we questioned whether the minority proposal really meant what it said, since it seemed to say that any claim of pedagogical justification, even a totally absurd one, would suffice to prevent discipline; and that the net effect would be to deprive students of all protection, since an instructor can always dream up some reason for racist and sexist statements that debase a specific student and simply label that reason a "pedagogical justification." We then speculated as follows:
It may be, however, that the Minority proposal does not really mean what it says, and that some claims of "pedagogical justification" would be sufficient to prevent discipline but others would not. In this instance, there must be some criterion by which to distinguish the valid "pedagogical justification" claim from the invalid. The Minority does not say what that criterion might be. The obvious one is "reasonableness" or some surrogate term such as "plausible," "tenable," etc. All such criteria require the use of judgment in their application. Thus the Minority proposal . . . [would be] the same as the Committee's (although less precise) . . .
To this critique, the minority now respond: "[W]e assume that a 'totally absurd' claim of pedagogical purpose could be found utterly lacking in credibility."16 Thus their proposal should now be read as making the imposition of discipline turn on whether the instructor had "a credible pedagogical justification." What, now, of the minority's claim that its version avoids the subjective judgment required by the use of "reasonable" in the Committee's standard? Does not a determination of what is "credible" involve an exercise of judgment?17 And is not the question on which that judgment depends essentially the same as under the Committee proposal, i.e., whether the claimed pedagogical justification is unreasonable? (In this regard, we think it worthy of note that the thesaurus function in the WordPerfect 8 word processor lists "reasonable" as one of the synonyms of "credible," and "credible" as one of the synonyms for "reasonable.")
b) "Intent" as an additional precondition for discipline. Under the minority's proposal, discipline would be possible only if the instructor lacked a credible pedagogical justification and intended to derogate and debase a specific student. This wording means not simply that the instructor must have intended to speak the words in question, but also that he or she must have intended that those words derogate and debase, i.e., harm the student. The minority quarrels with our treating intent to derogate and debase and intent to harm as equivalents.18 As noted earlier, we think it self-evident that epithets or comments that attack someone on the basis of their race, gender, etc. treating them as inferior, vile, appropriate objects of hatred are inherently hurtful. Consequently, we fail to understand how an instructor who addresses a specific student with an epithet or comment that demeans the student's race, gender, etc., and intends thereby to derogate and debase the student, could nonetheless lack the intent to harm the student. Indeed, the minority's position strikes us as akin to saying the one person can intentionally strike another over the head with a heavy board and still not intend to cause harm.
Whatever the equation between intent to harm and intent to derogate and debase, the question remains, "Should intent to derogate and debase be a condition for the imposition of discipline?" It is perhaps noteworthy that none of the verbal harassment rules adopted by Big Ten universities make intent a condition for discipline. All that is required is that the expression have the "purpose or effect" of "unreasonably interfering" with a student's academic performance or of "creating an intimidating, hostile, or offensive environment" for learning. What, then, is the basis for the minority's position? The original version of the "Minority Report"offered three arguments.
The first is that, unless intent is required, an instructor could be disciplined for a "thoughtless or inadvertent" remark. But under the Committee's recommendation, discipline is possible only if an instructor repeats the expression after having been asked to refrain. While the first instance of the expression might well be inadvertent, it seems highly unlikely that this would be true the second time around. The revised "Minority Report"seems to concede this point.19
Second, the minority seems to claim that requiring intent will "minimize . . .subjectivity of judgment that the majority values."20 Needless to say, we no more "value" subjectivity in decision-making than do the minority. Perhaps we are simply more candid in recognizing that uncertainty is inevitable, that life and law are seldom as unambiguous as the minority would like to believe. That thought aside, would making intent a condition for discipline really "minimize subjectivity"? Not likely, for one cannot see into the human mind. Intent cannot be directly observed. It must be inferred from the circumstances surrounding an event. The weight one gives to various relevant circumstances-even one's views on what circumstances are relevant, and what combination of circumstances should be considered sufficient to show intent-are all matters of judgment. And there are no objective criteria for making those judgments. Thus, far from reducing subjectivity, adding intent to the factors to be considered in a disciplinary hearing would actually increase the need for subjective judgment.
Finally-and this, we think, is the most important point to consider-the minority claims it would be unfair to impose discipline unless the instructor intended to derogate and debase the student. For three reasons, this position seems to us clearly wrong in principle.
First, we think that the minority is mistaken in thinking that intent-to-harm is the only mental attitude that justifies discipline. Consider this situation: An instructor addresses a specific student with a comment that the student views as degrading her gender, and she asks the instructor not to repeat that comment, explaining why it is degrading. At this point, if the instructor disagrees with the student, the instructor has ample opportunity to consult with others on whether the comment does degrade women. Indeed, the instructor can ask CFRR for an advisory opinion on this matter. Nonetheless, the instructor elects to repeat the remark. A disciplinary proceeding ensues. The instructor says that he has nothing against student and did not intend to hurt her, but thinks that she is just too sensitive, and goes on to insist on his "right" to say whatever he wants, regardless of how hurtful his comments may be to students.
Suppose the hearing body believes the instructor and finds that his state of mind was exactly as he claimed. We now have a case in which the instructor did not intend harm, but one in which it seems clear that he simply had no regard whatsoever for whether he would in fact cause harm. We think it appropriate to characterize this instructor's state of mind as one of reckless disregard for the harm his expression will cause. We believe there is nothing unfair in treating such utter lack of concern for a student's welfare as a sufficient mental predicate for discipline.
Indeed, there are many instances in the law, including free speech cases, in which such disregard for the welfare of others is a sufficient mental condition for the imposition of punishment. Thus in the landmark case of New York Times v. Sullivan, the United States Supreme Court undertook to lay down the conditions essential to maintain a civil suit in which a defendant is charged with publishing libelous statements about a public official. The Court viewed communications commenting on public officials and other political matters as deserving the highest degree of protection. Nonetheless, when the Court came to the mental element that must be shown to justify recovery in such a suit, it held that intent to falsify was not required, and that "reckless disregard" for the truth was sufficient.21 If reckless disregard is a sufficient standard for applying discipline in a case involving the most highly valued speech, surely the standard should be sufficient when personal insults and the like are involved.
Second, by making intent a condition for discipline, the minority proposal would protect an instructor who deserves no protection. If an instructor intends to debase and degrade a student, there can be no claim that the instructor acted inadvertently. Indeed, the instructor appears to have acted maliciously. The minority's proposal would, however, allow discipline only if the instructor repeats the expression. We see no justification for thus excusing the initial act of deliberate debasing and degrading.22
Finally, the minority's position would deny students the very protection from the egregious personal insults that can seriously impair their ability to function effectively in the University that the rules are intended to provide. When an instructor repeatedly addresses a specific student with an epithet or comment that concerns that student and degrades him/her on the basis of race, gender, etc., it hardly matters whether the instructor intended the harm or, as in the situation described above, acted with total disregard for the consequences of his/her conduct. Whatever the instructor's state of mind, the harm is done, and students deprived of the protection to which they are entitled.
B. An instructor uses an epithet not directed at a specific student, or a teaching technique that derogates and debases gender, race, religion, ethnicity, sexual orientation or disability, and a member of the class belongs to the debased group.
The minority proposal limits expression only if it is aimed at "a specific student or students." Since teaching techniques and epithets concerning a group do not have this specific focus, the minority impose no limit whatsoever on them. Consequently, the instructor who refers to African-Americans as "niggers" would be immune from discipline, despite the impact on African-American students in the class. Similarly, despite the harm done to women in the class, an instructor in an anatomy course who wishes to use a Playboy centerfold to "catch the class's attention" can do so with impunity.
In each of these situations, the Committee recommendation would allow the expression if there is a "reasonable pedagogical justification" for using it "rather than an efficacious technique that would not be derogating and debasing." The minority criticizes this provision on the ground that "it would seem almost always possible to choose some less offensive way to make a point."23 This criticism erroneously implies that epithets and degrading and debasing teaching techniques cannot be used if any less offensive alternative is available. But that is simply not the case. The Committee recommendation does not ban such expression merely because a less offensive alternative is available. To the contrary, it says that an instructor may use a such expression even though less offensive alternatives are available if there is a reasonable pedagogical justification for using the degrading expression. We think that this proposal strikes the appropriate balance between protection-of-students and instructor-freedom, for we do not understand why instructors should be free to impose on students the kinds of harms in question unless there is some plausible pedagogical justification.
The Burden and Degree of Proof
The "Minority Report"claims that the "Committee Report" weakens protections for faculty by how it imposes the burden of proof and defines the degree of proof necessary to find cause for discipline. The first claim is mistaken and the second trivial.
A. Burden of Proof
The "Minority Report"asserts that, under the Committee Report, an "instructor must prove that he or she" has a reasonable pedagogical justification in order to escape discipline.24 On the contrary, under "Faculty Policies and Procedures" (FPP), 9.11, which governs all disciplinary proceedings, the burden of proof in a disciplinary hearing is on the University administration (acting on a student complaint). FPP, 9.11, clearly states that CFRR-the hearing body in all disciplinary cases-can find "adequate cause for the imposition of discipline" only if such a finding is supported by "a clear preponderance of evidence in the hearing record." Thus the burden of proof is on the administration to show that there was no reasonable pedagogical justification for the expression.25
B. Degree of Proof
The "Minority Report"asserts that the degree of proof necessary to impose discipline is a "preponderance of the evidence" and would change this standard to "convincing clarity."26 What the minority intend by "convincing clarity" is unclear. The meaning of this phrase is hardly self-evident, and is not one generally recognized or defined in the law.27 The minority's explanation that "convincing clarity" entails "more than" what is required by a preponderance of evidence "but something less than" what is necessary to prove the case "beyond a reasonable doubt" (p. 5) is not much help.
In any case, the degree of proof required under FPP, 9.11, is not simply a "preponderance of the evidence," as the minority claims, but a "clear preponderance." This, like the minority's standard, requires more than just a preponderance of evidence and less than proof beyond a reasonable doubt. At best we find it difficult to see any significant difference between minority's "convincing clarity" and the "clear preponderance of the evidence" required under the Committee proposal. Moreover, under Paragraph B of FPP, 9.11, "A Finding by the CFRR of adequate cause for discipline" requires "a majority vote with not more than two dissenting votes." Since the CFRR has nine members, even a super-majority of two thirds may not be sufficient to find adequate cause for discipline (e.g., a vote of 6-3 to find cause is insufficient), not to mention a bare majority. To proceed with discipline, the administration must convince nearly all members of CFRR to contravene an instructor's claim of reasonable pedagogical justification. To do so, the proof must be very clear and very convincing.
Conclusion - Protecting Student Expression
The purpose for having rules regulating instructors' expression in the classroom is to ensure that derogating and debasing expression does not prevent students from participating as equal members of a class. Such rules are not concerned with inhibiting intellectual dialogue, and we agree with the minority that "in areas of intellectual controversy," students must take responsibility for challenging an instructor's ideas, and that their exercising this "freedom" constitutes "the most appropriate response to controversial ideas."28As we have repeatedly made clear, however, the "Committee Report" in no way limits the free expression of ideas by any party in the classroom. Rather, it deals with those special situations in which instructors' expression so degrades students that it cows them from engaging in debate. It is one thing to demand that students have the fortitude to challenge their instructors' ideas, and quite another to insist that on their own they ward off expression so personally degrading and debasing that it is likely to discourage them from speaking at all. It is simply naive to base the protection of students' rights to expression on the expectation that every one of them has the intellectual and personal wherewithal to overcome the institutional and psychological authority that vitalize an instructor's potential to hurt. In the final analysis, the "Minority Report"is more tender of instructors than of students and disequilibrates the Committee Report's balance of concern for both. Students winnowing and sifting for truth in a classroom have as much claim to protection for their freedom of expression as do instructors.
Claudia Card
Carin Clauss
Charles Cohen
Ted Finman
Gail Geiger
Kathleen Holt
Evelyn Howell
Stanlie James
Frank Kooistra
James Wollack
2 For an example of a situation in which the Committee's proposed legislation would protect such expression, see "Report of the Ad Hoc Committee on Prohibited Harassment Legislation," [henceforth, "Committee Report"], III.B, example 3.
3 "Minority Report," pp. 1-2.
4 "Committee Report," proposed rule III.B.1.
5 To cite an example not in the Committee Report, in a course on modern European political history, an instructor's opinion that the "Protocols of the Elders of Zion" is a genuine document establishing the existence of a world-wide Jewish conspiracy is germane to the course and cannot be the basis of discipline, even though the document has proved to be an anti-Semitic forgery and provoked lethal violence against Jews.
6 "Committee Report," proposed rule III.B.1.
7 "Committee Report," proposed rule III.B.2.
8 "Committee Report," proposed rule III.B.3.a-d.
9 "Minority Report," note 6.
10 See sources collected in the discussion of this matter in Richard Delgado, "Words That Wound," 17 Harvard Civil Reports-Civil Liberties Review, 133 (1982).
11 See the unpaginated sections on "How to Recognize Sexual Harassment" and "How it Feels" in "Understanding Sexual Harassment," a training brochure put out by the University of Indiana, which includes "sexist jokes or humor" and "gender specific insults or comments" as forms of "verbal harassment" and notes that such actions can cause female (and, for the matter, male) students to experience "fear, anger, guilt, self-blame, humiliation, feelings of isolation, [and] decreased participation [in class or at work]" among other "negative effects," and might even lead someone to change one's "professional goals or academic major." Copy on file in the office of Paula Gray, Secretary to the Ad Hoc Committee.
12 Because the minority fail to perceive this connection, they claim that the Committee proposal would allow discipline even when the expression in question causes no harm. Footnote 6 of the "Minority Report" says that the "majority overtly favors punishment without evidence . . . of actual harm." This statement distorts the majority position. It goes without saying that we do not favor punishment without evidence of harm. And, as explained above, epithets and comments that are directed to a specific student and debase that student on the basis of race, gender, etc., are inherently harmful. Expression that could be a basis for discipline under the Committee proposal necessarily involves harm.
Footnote 6 embodies another misconception about what constitutes harmful behavior. Under the Committee proposal, one of the many conditions that must be satisfied before expression can be a basis for discipline is that the expression is "likely seriously to detract from a student's capacity to act as an equal participant in the class" ("Committee Report," proposed rule III.B.3.d). Noting that the harm need only be "likely," the "Minority Report"claims that we favor punishment without evidence of "actual harm." (Much the same statement is repeated in footnote 7.) Thus the minority seem not to recognize that conduct which creates a substantial risk of some social evil-conduct that places others in a position where they are likely to be hurt-is itself a harm. Society takes a different view, however, for it often treats the creation of a risk of harm as a harm in itself, and, therefore, an appropriate predicate for punishment. For instance, speeding laws and other traffic regulations call for punishing individuals whose reckless behavior might endanger others. Moreover, even when speech is involved, various laws allow punishment to be predicated on conduct that puts others at risk even though the threatened harm never materializes. Since the capacity to act as an equal participant in the class lies at the heart of the student's academic performance, creating a substantial risk of interfering with a student's academic performance is surely itself a harm. 13 In a disciplinary proceeding, the administration would have the burden of proving that the pedagogical justification was not reasonable. See infra, p. 14.
14 "Minority Report," p. 2.
15 The first version of the "Minority Report" distributed to the Ad Hoc Committee, dated July 16, 1998, was answered by a "Reply to the 'Minority Report'" dated September 2, 1998. In response to this version, the minority issued a revised report, dated September 24, 1998, to which the present document responds. The report of September 24 and the present document are the official versions filed by the Ad Hoc Committee, and supersede the earlier texts.
16 "Minority Report," footnote 5.
17 Indeed, in footnote 7, the "Minority Report"says, "Even the minority standard will undoubtedly require the use of judgment and discretion in application." What, then, is the difference between the Committee and minority standards? The minority's answer, which follows the quotation immediately above, is this: "But the majority's standard would permit third parties to impose their judgment as to how an instructor ought to have behaved if only he or she had, in their view, behaved reasonably." Two points must be made in response.
First, the "third parties" to whom the minority refer would be the nine faculty members who constitute CFRR, the very same body that would exercise the "judgment and discretion" that the minority concedes would be inherent in the use of its standard. Thus, if there is reason to fear that these "third parties" would misapply the Committee standard, there would be equal reason to fear how they would judge what is "credible" under the minority proposal.
Second, the minority seems to have little faith in the faculty colleagues who sit on CFRR, and seems to see them as both unwilling or unable to uphold academic freedom, and ready and willing to "impose their judgment" of what constitutes proper behavior. But that is not what the Committee's rules call upon CFRR to do. The issue before CFRR would be whether the administration, which has the burden of proof, has shown the claim of pedagogical justification asserted by the instructor to be unreasonable (or, under the minority proposal, not credible). We think our colleagues can and would understand this and would be conscientious in protecting the academic freedom that we and they so highly value.
18 "Minority Report," footnote 4: "The majority misconstrues both the minority's standard and its implications. Our alternative requires evidence of intent to derogate and debase, not intent to harm." This footnote goes on to claim that the majority itself has treated intent to harm as distinct from intent to debase. Their argument, if we understand it, is this: Since the majority would protect intentionally derogating expression that has a reasonable pedagogical purpose, but the majority would not protect speech uttered with an intent to harm, the majority must see intent to harm as distinct from intent to derogate. This argument rests on a misunderstanding of our rationale for protecting derogating expression that has a reasonable pedagogical purpose. The rationale is not that such speech is harmless, but that if expression has a reasonable pedagogical justification, it should be protected despite its harm. This reasoning explains why the Committee proposal protects even the most repugnant racist ideas and also expression uttered with an intent to derogate and debase if they have a reasonable pedagogical justification.
19 "Minority Report," footnote 4.
20 "Minority Report," footnote 7, emphasis added.
21 376 U.S. 254 (1964), 279-80. The minority agrees that in many cases utter disregard for others' welfare is sufficient in law to justify punishment, but says that "regulation of speech is not one of them" ("Minority Report," footnote 6). Although the minority elsewhere refer to the New York Times case, they seem to have forgotten it here.
22 The Committee proposal also requires repetition, but does so to protect an instructor who makes a comment inadvertently or without realizing that it degrades a student. Such an instructor, one who has no knowledge of the harm caused by his/her expression, should not be considered culpable, and therefore should not be subject to discipline. Under the minority proposal, however, even if an instructor addresses a student with a racial epithet or comment intending to degrade and debase the student, the instructor would not be subject to discipline unless he/she repeats such expression. Since the intent to degrade makes the instructor culpable, repetition is not necessary to protect against punishing a non-culpable person. Indeed, by requiring repetition under such circumstances, the minority protects an individual who clearly is culpable.
23 "Minority Report," p. 2.
24 Ibid.
25 The "Minority Report," footnote 2, concedes that the burden of proof falls on the administration, but goes on to claim that "there is little doubt that an instructor will need to provide evidence that his or her purpose was reasonable." No authority is cited in support of this claim, and none could be. To be sure, an instructor who thinks the use of a degrading epithet has a pedagogical justification must say what the justification is. Once the instructor has done so, however, the provisions of FPP, 9.11, place the burden of proof on the administration to show that the justification is not reasonable.
Footnote 2 goes on to point out that claims concerning unpopular speech are often adjudicated in environments characterized by emotion and prejudice. This concern is well placed, but it does not change the rules on burden of proof. Even if such an atmosphere were ever to become so extreme that it could infect the fairness of hearings before our Committee on Faculty Rights and Responsibilities, the burden of proof would still be on the administration.
26 "Minority Report," p. 5.
27 The minority cites the use of this phrase in New York Times v. Sullivan, but there it is not put forth as a standard of proof. The recognized standard that fits somewhere between "preponderance of the evidence" and "beyond a reasonable doubt" is "clear and convincing evidence." As we write, a motion is pending in the Faculty Senate to amend FPP, 9.11, to make "clear and convincing" the standard in all disciplinary matters. If the motion passes, the "clear and convincing" standard would be the one applicable under the Committee's proposed rules.
28 "Minority Report," 7, 8.