November 5, 1998

Memorandum

TO: Members of the University Committee and Faculty Senate
FROM: Student members of the Ad Hoc Committee on Prohibited Harassment
RE: Ad Hoc Committee on Prohibited Harassment Legislation

During the December Faculty Senate meeting, you are slated to discuss the proposed revisions to the University of Wisconsin-Madison's Prohibited Harassment Policy, otherwise known as the "Faculty Speech Code." We are writing to you as the three student members of the Ad Hoc Committee and want to share with you our perspectives about this important university policy.

The three of us have spent hundreds of hours discussing, debating, and thinking about policies that regulate speech on a university campus. We all come from historically opposed groups - one of us is a gay male, one a white female, and one an Asian-American female - and we have all experienced bigotry and hatred as a result. But in the end we opposed the Majority's proposal because we feel it does not adequately protect the academic freedom rights of both faculty and students, who have an equal right and responsibility to sift and winnow toward wherever the truth shall lead.

Our intention in this memo is not to reiterate concerns addressed by the Minority Report, of which we contributed to, but to clearly state from a student perspective why we favor a less restrictive atmosphere toward knowledge and ideas on this campus. We hope to accomplish several purposes through this memo:

To detail why we as students unanimously oppose the committee's majority recommendation;
To question the claim that the Faculty Speech Code is a pro-student policy and to discuss why we believe this policy diminishes students' chance of receiving a robust education;
To urge you to consider amending the committee's recommendation to include stronger protections for academic freedom, as laid out in the minority report.

First, we have come to believe strongly in the value of freedom of expression and thought, especially at a university. The pursuit of truth fundamentally requires ALL ideas - even hateful, bigoted ideas - have some place in the market. Through an honest and open dialogue and the rigors of public checking, we can weed out those "bad" ideas in hopes of ascertaining the "truth." Obviously, the market place is not perfect, but despite its limitations, the University of Wisconsin cannot assume that we have found the "truth" regarding such complicated issues as race, gender and sexual orientation and should now close off debate. We find it hypocritical that a university which is committed to an honest and open pursuit of the truth would have in place a policy that could potentially fire a faculty member for expressing his or her deeply held scholarly belief. We believe this policy does have actual and serious threats to students' pursuit of academic freedom.

During debate over key areas of disagreement, one of us proposed adding an example to the policy to cover a situation where a student may push a faculty member to give her opinion about her area of scholarship as it applies to that student, even though that opinion would likely be regarded by that student to be seriously debasing and derogating.¹ We wanted to demonstrate that students, using their academic freedom rights, may seek a controversial opinion to further debate or learn something, even if they receive a personally painful answer. The Majority rejected this example and demonstrated to us that they lacked enough faith in students to desire a robust and honest education.

The three of us have grown up surrounded by sexism, racism, and homophobia. We know firsthand the painful effects of bigoted speech, but we do not believe the battle for equality is won by silencing those who perpetuate the offenses. Rather, through example, through speech, and through reason, we are able to ascertain the truth. We know that we aren't going to end homophobia, sexism, or racism by standing idly by and allowing a policy to do it for us. We also know that censorship of hurtful ideas is not appropriate or possible in the "real world." We don't understand why the University of Wisconsin should be any different. We can't erect a wall around the campus and pretend the rest of the world does not exist.

We also want to urge you not to frame this debate in terms of "restrictions" on faculty and "protections" for students. As the three student representatives on this committee, appointed by the Associated Students of Madison, we find this policy to be restrictive on our ability to receive an open and wide education. It is clear to us that not all students favor this type of regulation and that this policy is not necessarily in the best interest of students. In our opinion, this policy IS NOT A PRO-STUDENT POLICY, no matter how supporters characterize it. Obviously, there are students who believe in regulations of faculty speech, and in no way are we saying they do not exist. However, we feel it is important for you to know that students are at best split on this issue, and it cannot be assumed that this policy is automatically in the students' best interest. Additionally, both student newspapers endorsed abolition of the Faculty Speech Code.

After reviewing this policy for one year, we have three main substantive concerns regarding the current UW-Madison policy on "Prohibited Harassment:"

We have a hard time believing there is a problem on this campus with offensive speech by faculty members. Why are we attempting to legislate a non-problem? We made numerous attempts to find UW students who had personal experiences with degrading speech by faculty members. We wrote an open letter to The Badger Herald inviting students to talk to us (we included home phone numbers and e-mail addresses); we e-mailed minority student group leaders to solicit input; we attending minority student group meeting to talk about the issue. We even encouraged students to express degrading experiences by faculty in writing, so that they could remain anonymous. In short, our attempt at finding ONE student who could detail such an experience was fruitless.
The "Speech Code" has never been used in any disciplinary action since its adoption in 1989. This policy has never "officially" been invoked, yet the university feels it is critical to helping minority students feel "comfortable" in the classroom. Again, why fix a problem that is not there, especially when it comes at such a high cost? Of course, we are not saying that racism, sexism, homophobia, etc., do not exist, but we have not been able to find a recent example of a faculty member engaging in the prohibited classroom speech stated in the policy.
There are more effective ways to combat bigotry on campus. We understand that eliminating harassment and bigotry on this campus is a high priority, and we applaud faculty and administration for placing such an important value on this. But we believe that efforts would be better served in other areas of academic, campus and student life, as opposed to a punitive policy that only makes bigotry go underground.

On the other hand, we do see the value of having a policy if it is narrowly crafted and aimed at only the most egregious kinds of cases. But, the Majority's proposal fails to meet these standards, standards that should and must be high. Also, the Majority characterizes its proposal as though it is in the best interests of students and that it is necessary to combat the power differential between students and faculty. We believe that there are three main reasons why the Majority's proposal is not a pro-student policy and is problematic:

The Majority's proposal will lead to unpredictable and inconsistent outcomes because it is too vague. No policy is ever going to be clear enough to address all of the nuances associated with regulating expression. Any type of Speech Code must be as clear as possible in its definitions and intentions, so that any reasonable person can read the policy and understand what is and is not protected. Consequently, we believed a narrowly-tailored policy is preferred to the Majority's broader policy. Seventeen members of this Ad Hoc Committee, after spending eight months drafting the policy, were heavily split in May on whether the student-proposed example (see endnote) would be prohibited under the Majority proposal. This clearly demonstrates a shortcoming of this policy.
The Majority is too quick to assume that a faculty member is abusing his or her power if that faculty member expresses a scholarly belief that is hurtful. We believe that sometimes a faculty member, out of respect for the student's maturity and ability to reason and accept difficult criticism, will tell the student his or her intellectually honest opinion about a difficult subject that a faculty member knows might cause a student great pain to hear. A student may ask a faculty member what is his or her intellectually honest belief on a controversial issue, and the faculty member may answer knowing that it may deeply offend the student. But the Majority is too quick to assume that this expression of an honestly held idea is an intolerable abuse of the faculty's members' power, and therefore should be punishable. Indeed, under the Majority's proposal, if the expression is a "comment concerning a specific student" that derogates and debases that student, it is potentially vulnerable to discipline if there is not a reasonable pedagogical purpose for the use. This is most troubling to us because it covers a faculty member's expression of an idea related to the course even if it is in response to a student's particular question. While the Majority purports to respect students' academic freedom rights, the Majority is too quick to assume that students are a herd of blind sheep. Students have academic freedom too, and a give and take between faculty and students on tough issues should be encouraged, even though these discussion may lead to hurt feelings.
The Majority's proposal will not effectively counter the power differential between faculty and students. We do not deny that there is a power differential between faculty and students. As a result of this differential, it is understandable that students do not always feel comfortable to embrace their own academic freedom. But, the Majority is mistaken to assume that this policy will help counter the imbalance. If anything, this policy only perpetuates the power differential by sending a signal that students don't need and aren't expected to be able to debate their professors on controversial issues. Also, the Majority is once again too quick to assume that if a student effectively counters a professor's scholarly belief that the student finds grossly offensive, that the professor will not respect the student's courage to speak up. Of course, we do not deny that there will be times that the necessary respect for students' academic freedom will fail to exist, but this policy does not solve this problem, rather it only perpetuates it. The majority's proposal fails to encourage students to use their academic freedom and for both students and faculty to recognize the benefits of these tough exchanges.

In short, we feel a Faculty Speech Code, if UW-Madison continues to desire one, should only punish speech that is intended to derogate and debase a student for no pedagogical purpose. It also requires that the speech must negate the student's ability to perform as an equal participant of the class. This is the line we helped draw in the Minority Report. We do not believe a faculty member has the right to intentionally insult a student simply to hurt the student. We know too well as members of minority groups that such expression has no legitimate purpose. But we feel the Majority's proposal is much broader than this and it covers legitimate expression of ideas. For this reason, we support the Minority position.

In summary, it has been an honor and a pleasure to serve on the Ad Hoc Committee. We urge you to carefully consider this piece of legislation. In our view, this policy is one that can define the vision and the goals of the University of Wisconsin. But it is also one that can seriously tarnish the image of our commitment to sifting and winnowing for the truth. We urge you to adopt the minority proposal that is narrow in its scope and more clear in its definitions.

Sincerely,

Jason Shepard
Amy Kasper
Rebecca Bretz

Notes:

¹ The example, proposed and debated on May 1, 1998 by the Ad Hoc Committee, was: "In a class that deals with issues about homosexuality and morality (perhaps a philosophy, religious studies or political science course), a professor discusses the relevant issues surrounding the contemporary debate. Readings for the course, such as articles by leading scholars as well as The Bible, could be considered derogating and debasing to homosexual students in the course. During a discussion of one of the readings, the professor acknowledges that she believes homosexuals practice deviant behavior outside the "norms" of society. She presents data that contends homosexuals are disproportionately child molesters and AIDS carriers. She also says that true Christians believe that homosexuals will go to hell if they believe homosexual behavior is appropriate. After class, a male student approaches the professor and tells her that he is gay, and asks what the professor thinks of him. The professor responds by saying the student's homosexuality is a lifestyle choice and the student is free to choose to live a homosexual lifestyle if he wishes. The student presses the professor and asks if that means he is immoral, if he is going to hell, and if he represents a group of people who are child molesters and AIDS carriers. The professor is posed with a dilemma. If she is true to her academic and scholarly beliefs, she must respond in the affirmative; but she knows that will hurt the student tremendously. She tells the student that based on her beliefs, which she says are formed from her academic research, that he is indeed immoral, he is going to hell, and he does represent a group that has a disproportionate number of AIDS carriers and child molesters. This exchange of academic ideas is protected under this policy because it is a discussion of ideas germane to the subject matter of the course, even though it may be construed as derogating and debasing to the specific student."