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April 24, 2012

Why Do Dems and Liberals Tolerate Speech Codes?

New York magazine's Jon Chait ran one of his periodic columns arguing that congressional Republicans were unlikely ever to have cooperated with President Obama, regardless of Obama's policies. Chait has argued, persuasively, that given the current political climate and the institutional tools available to the minority to obstruct without paying a political price, only a naïf would have expected the congressional GOP to have worked in a collegial fashion with the President.

To make his point in his most recent post on the topic, Chait looked back to a 2008 column from Peter Berkowitz, who laid out several things Obama needed to do (or not do) to create an atmosphere conducive to bipartisanship. Chait pointed out that for the most part, Obama didn't contradict Berkowitz's recommendations--and yet this made no difference. (Chait defined the Sotomayor appointment in an overly charitable fashion, but the rest of his analysis was sound.) Both partisan and institutional incentives strongly leaned against House or Senate Republicans cooperating with the administration. That's the way our system of government works in an environment like the current one, where the two parties are much more ideologically coherent than at most previous points in U.S. history.

But even Chait conceded that the President didn't fulfill one of the terms laid out by Berkowitz, who had urged Obama to "call on public universities to abolish campus speech codes and vigorously protect students' and faculty members' speech rights."

Chait first suggested that the proposal was irrelevant: "Obama did not do this, as far as I know. But if he had done it I don't think anybody would have noticed. "Really? If a President elected with strong support from college and university students and faculty had come out against speech codes, the higher-ed world wouldn't have noticed? Chait then downplayed the relevance of the issue: "I also hated speech codes when I was in college, but has this issue popped up at all since 2008?"

Chait (I read him daily and usually find him persuasive) is normally a careful columnist; a glance through FIRE's website would have shown him that the scourge of campus speech codes remains very much with us, and the issue has "popped up"--over and over and over again--since 2008. Moreover, it's not as if the administration has simply been neutral on the question of civil liberties at colleges and universities; instead, the Education Department, through its "Dear Colleague" letter, has all but waged war on campus due process.

Ironically, a few days after Chait wrote his column, an article went out over the AP wire referencing the administration's policy--and providing a chilling rationalization for it. AP education reporter Justin Pope turned to "victims' rights advocate" (and serial fabricator) Wendy Murphy to explain why the "Dear Colleague" policy (which requires colleges and universities to lower the bar for conviction in campus sexual harassment claims to a preponderance of the evidence) was needed. Pope paraphrased Murphy's views in the following way: "Colleges must protect victims, she says. That means abandoning the fantasy they can make everybody happy by also offering accused students the full due process rights they'd enjoy in a criminal trial." And then the AP quoted her directly: "You can't run a school that way. If every once in a while a school has to be sued at the cost of being fair to all students, so be it."

How is it that a policy reflecting such an extraordinary conception of due process could not generate widespread condemnation from Democratic politicians and liberal columnists, who usually are quite sensitive to protecting civil liberties? Alas, neither group has much incentive to speak out on the issue--and considerable incentive not to do so.

Both campus speech codes and the "Dear Colleague" letter operate from authoritarian impulses that the basic protections of the Constitution--whether free speech or due process--ought not to apply on college campuses. But their advocates claim that they're necessary tools to promote "diversity," and try to bully critics by labeling them as racists or misogynists.

Given the realities of the current Democratic political coalition, where is the incentive for an up-and-coming Democratic politician--or a high-profile liberal columnist--to take a strong stand against an issue that's being sold as promoting "diversity"? (Unless, that is, they've previously been engaged with the question of campus due process rights.) There's about as much incentive for so doing as there was for Senator McConnell to have spent 2009 facilitating the Obama agenda. That's not to say someone like Chait supports speech codes or the "Dear Colleague" standard--it seems pretty clear that he does not. Instead, the preferred tactic is to minimize or ignore the issue, and then move onto something else.

What will it take for wider outrage to emerge? We've already had a case of an innocent student (Caleb Warner) expelled from school under the preponderance-of-evidence standard, as the AP article mentioned. But to my knowledge no congressional Democrats or liberal columnists commented on the Warner case. And so, I suppose, we'll continue to wait, and be told that issues of campus due process and civil liberties haven't popped up in recent years.

Comments (6)

As I note on my blog, it's odd that KC Johnson wonders why liberals don't speak out against speech codes and the recent “Dear Colleagues” letter on campus due process by the Department of Education. The answer is: we do. In fact, Johnson links to a FIRE article that points out the fact that the AAUP wrote two letters to the OCR about the issue of due process on campus.

I criticize repressive aspects of speech codes in my books The Myth of Political Correctness (1995) and Patriotic Correctness (2008). In fact, I go much further than other critics such as FIRE, and point out the flaws in speech codes at colleges that they give a green light to. Just today, I posted an essay on Academe Blog about Liberty University, noting that it has one of the worst speech codes in the country (and one which conservative groups typically refuse to criticize).

It's ridiculous to declare, as Peter Berkowitz does, that President Obama was obligated to tell colleges that they must “abolish campus speech codes.” Regulation of speech is a necessary part of any society and any campus. Otherwise, people could shout down speakers, make threats, steal newspapers, and so on, claiming free speech as their defense. The problem is not that colleges regulate speech with codes; the problem is that their speech codes are badly written, vague, and repressive. We need better speech codes, not a nonsensical ban on speech codes. Unfortunately, it is not so easy to advocate making marginal adjustments in obscure campus regulations in order to reduce (but not eliminate) the likelihood that administrators can abuse it.

Nor do I think that the federal government should be dictating speech codes to colleges. If anything, we should be urging President Obama to protect the free speech rights of federal employees in the age of Garcetti, not calling upon him to make uninformed judgments about college campuses.

hieronymous braintree:

It's refreshing to see a man like John Wilson fearlessly takes himself seriously--so seriously, in fact, that he heroically and repeatedly cites himself as his own source.

I ask you, what better authority can there possibly be than that?

Forbes:

Mr. Wilson is extremely confused if shouting down speakers, making threats, and stealing newspapers can be defended under claims of free speech. None so qualify. All such described behaviors are already fall under such legal prohibitions as civil harassment, civil disobedience, disorderly conduct, burglary, et al. As to his claims regarding regulation of speech--in society or on any campus--it is already addressed in the US Constitution, i.e. no abridgment of speech. It would be misleading, at a minimum, to characterize the President's sworn duty to uphold the Constitution as making "uninformed judgments about college campuses." Mr. Wilson appears to have that market cornered.

Holdfast:

John:

"Otherwise, people could shout down speakers, make threats, steal newspapers, and so on, claiming free speech as their defense. "

Actually, the leftists on campus do exactly that whenever a conservative or Israeli speaker comes to a campus. And conservative posters and papers are routinely trashed. And for the most part, college and university administrators don't care.

jcp370:

How is it that the author continues to believe in Obama and the current version of liberalism which is anything but liberal? I am always taken aback by the fact that K.C. Johnson identifies as a liberal since he/she sounds so much like a libertarian or a conservative which would be more like a classical liberal. As for Mr. Chait, he is a partisan hack who I almost never read because I find him to be intellectually dishonest which is unforgivable in a writer. Funny old world, inn't?

Akash:

She's a cute girl. The Obama speech was inspiring, whether you're Republican or Democrat, etc; the message he gave is the message we've all needed to hear and ask ourselves, what will be our contribution? Well Sarah, I hope you do well in school and adhere to his message, no peer pressure, stay out of trouble, let your failures teach you, and never quit trying to succeed. I wish I heard that kind of speech before I graduated in 08, but I can still be inspired going to the military. Thx Sarah.

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