By Donald Downs
It has been over a week since the University of Wisconsin at Madison was torn by the debate over affirmative action on September 13. The conflict was precipitated by the presentation of a study conducted by the Center for Equal Opportunity, which alleges reverse discrimination in UW admissions policies.
A lot has been written about what happened at the press conference announcing the event and the debate between CEO's Roger Clegg and UW law professor Larry Church later that evening. Most publicly presented views have been supportive of the students who protested at these events, and have defended the UW's admissions policies. But criticisms of how this conflict has been handled have percolated beneath the surface.
Neither I nor the academic freedom group with which I am associated has an official or definitive position on affirmative action, deeming the issue to lie outside the domain of academic freedom. Indeed, our personal views lie across the policy spectrum, including the agnostic. We do not have a horse in this race. Perhaps such diversity of viewpoints is appropriate for members of a university.
But we do have a horse in a race regarding the marketplace of ideas at this and other institutions of higher learning. UW-Madison has a historic commitment to academic freedom, our official motto affirming the “fearless sifting and winnowing by which alone truth can be found.” And the conflict over admissions policies has posed challenging questions about the rights and responsibilities of protest actions on campus.
From one perspective, it could be said that the University’s commitment to robust sifting and winnowing was honored by both the Center for Equal Opportunity and the large majority of student protesters. Roger Clegg of the Center presented his group’s controversial and highly disfavored ideas—on this campus, at least—with skill and the requisite courage, and protesters responded with the courage of their convictions. Counter-speech and protest are honored free speech traditions deserving great respect and full First Amendment protection. Though very tense, the debate on affirmative action the evening of September 13 at Union South was carried forth in this spirit, though with a qualification I will address later. I came away from the debate having learned new arguments on each side of the dispute, which is a credit to Clegg and Church.
The University is also to be commended for the way it handled the debate. Security was more than ample, and the officials and student aids at Union South did a good job of dealing with the crowd that showed up and instructing them on the duties of audiences.
Unfortunately, some key aspects of the morning press conference at the DoubleTree Hotel downtown (off campus) appear to have been a different matter. There is a key First Amendment distinction between protest and disruption. Some public commentary on the press conference protests has portrayed the protesters as completely orderly and lawful. But other witnesses with whom I have spoken have been considerably less sanguine, depending on the circumstance.
One reason for the difference of opinion is that the DoubleTree protests were not limited to one area, but took place at several places throughout the hotel. What some observers saw, others did not. According to witnesses who have spoken to the police, some protesters forced their way into the hotel, while some others pushed hotel employees to the ground and made threats, causing injury in at least one case.
Such conduct is not the kind of counter-speech countenanced and protected by the First Amendment—to say nothing about appropriate behavior. For starters, the hotel is not a public forum, but rather private property. While public and protester access to a public forum is mandatory, private property owners have a right to control access within legal limits. In addition, no one maintains that physical force and physical intimidation are properly rights of free speech. Awareness of this fact is perhaps one reason that several peaceful protesters apologized to hotel employees and others after the event for the conduct of a disruptive few.
Disruption is a problem for at least two reasons. First, it violates the rights of speakers and listeners. Second, it sends a message that the topic under discussion is taboo, and, therefore, not a proper subject for public discussion. Perhaps there are such topics, even at a university, but affirmative action is not one of them. There are reasonable arguments on all sides of this question, as the debate at Union South demonstrated; and it is a topic of widespread debate in the public sphere, including court cases and many college textbooks that deal with controversial issues.
Though widely discussed in society and in the law, the discussion of admissions standards in this context has indeed been taboo at many universities—the very places where such controversial issues should be most readily discussed. Though officially dedicated to the pursuit of truth, many universities have misled the public about their methods and the statistics pertaining to affirmative action, and have staunchly resisted providing such information when requested by the public they serve. The exposure of this problem at Berkeley sparked the passage of Prop 209 back in the late 1990s, a statewide measure that banned the consideration of race in admissions. Some universities have made “diversity” a higher principle than the pursuit of truth.
Perhaps ironically, the mentality of taboo harms the very students it is meant to protect. Though the protesters had every right to challenge Clegg and the CEO report within legal limits, the quality of their response was not impressive. Even at the debate, the frequent challenges from the audience and in the Q and A were much more of the “how dare you even think that” quality than arguments meant to intellectually persuade. Boos and catcalls are not as effective as the qualitative arguments Professor Church made.
It is fair to say that the tradition of protest is alive and well at Wisconsin, and this is a good thing as far as it goes. But we have yet to hear the administration say anything about the disruptions at DoubleTree; and it appears that protestors need to learn how to persuade rather than engaging in the speech policy of taboo. Isn’t that what a university is supposed to be about?
Donald Downs is the Alexander Meiklejohn Professor of Political Science at the University of Wisconsin at Madison