Free Speech at Tufts University "Deja Vu" All Over Again
March 27, 2000
Free Speech at Tufts - Redux
By Harvey A. Silverglate & Gia Barresi
March 27, 2000
In a celebrated speech that he gave in Dublin in 1790, J. P. Curran noted that "The condition upon which God hath given liberty to a man is eternal vigilance." The wisdom of his observation was reconfirmed at Tufts University, which just last week agreed to withdraw the university's second attempt in 12 years to censor the speech of its students. Although Tufts' administrators did the right thing in the end, the incident raises deep questions. Should deans of student life have such power and such a sense of political mission that they do not immediately grasp the difference between the governance of student actions and the governance of student words, a distinction upon which American liberty depends? Why is their immediate devotion to academic freedom so tenuous that it requires a long lesson to remind them of their moral and intellectual obligation to honor that vital distinction? These issues affect almost every American campus.
The Tufts administration, in keeping with the increasingly ascendant therapeutic model of the governance of student life, last semester issued a student pamphlet that interpreted long-standing student "harassment" and "intolerance" codes in a new way. This restrictive interpretation effectively would have re-instituted the blessedly short-lived 1988 restrictions on speech that administrators deemed offensive—all this in the name of making the campus a comfortable environment where "understanding, respect and tolerance," and a moral commitment to "diversity," were required of students on pain of punishment. To their credit, when it was pointed out to Tufts' current administrators that the university's new pamphlet, "Confronting Intolerance," bore a disheartening resemblance to the decade-old failed and discredited attempt to stamp out "offense" with censorship, they last week assured the Foundation for Individual Rights in Education (FIRE) that the pamphlet would be amended to eliminate any suggestion that a student could be officially punished for uttering mere speech, even if disfavored by Tufts.
Nonetheless, despite the administration's welcome agreement to amend its interpretation in order to avoid infringing on academic freedom, there are worrisome aspects to this latest close call for free speech. For one, while the prior speech code had been withdrawn in the face of widespread and well-attended student demonstrations for academic freedom—following an extensive debate among undergraduates that won the day for student liberties—the current pamphlet produced only isolated pockets of student grumbling and no large or concerted action. Further, where the first code—precisely because of student activism on behalf of undergraduate rights—gained prominent notice in The Boston Phoenix, The Boston Globe, The New York Times, and The Village Voice, the current effort to censor student speech drew barely any notice until Harvey Silverglate, in his capacity as vice-president of FIRE, was informed anonymously about the pamphlet and sought a meeting with Tufts administrators.
Of course, to say the least, there is nothing wrong with "understanding, respect, and tolerance." We like to think that this describes us as well. There is a real question, however, about whether it is the proper job of the administration of a liberal arts college to seek to force its students to profess adherence to a particular social ideology, rather than to give such students a sufficiently good education so that they can come to their own (hopefully enlightened) conclusions about what's right and wrong in life. No one can be forced to "understand" and "respect" other people's views and choices. We all have our own examples of that truth, our own standards, our own priorities.
Nonetheless, campus administrators, wearing their social engineers' hats, adopt a profoundly more problematic role when instead of trying to persuade students voluntarily to look at life in accordance with the university's official social ideology, they assign themselves the coercive power to punish words on the administration's list of disfavored expression. Such arrogation of the powers of censorship is even more objectionable when it comes a mere 12 years after an embarrassingly failed experiment in speech control that ultimately was repudiated by Tufts' then-President Jean Mayer, who admitted that it was a mistake because it violated academic freedom. Somehow, Tufts' current administrators' historical memory failed. More likely, they simply failed to grasp that censorship in the name of a seemingly good cause like tolerance is, nonetheless, censorship, and that the essence of free speech and academic freedom is the right to utter words and thoughts that we hate. Such freedom is good in itself; it becomes imperative, of course, in a society in which citizens hate and love a great variety of mutually exclusive things.
A little history sometimes illuminates the present.
In October 1989 Silverglate reported in his column in The Boston Phoenix that the Tufts administration, seeking to curb the use of offensive speech on the highly-regarded liberal arts campus in Medford, adopted a policy that limited speech deemed racist or sexist in some academic buildings and other areas on campus and banned it outright in dormitories. The policy created a three-tiered system which allowed varying degrees of free speech protection or restriction on different parts of the campus. Language that "stigmatized" others on the basis of race, sex, or ethnicity was deemed to create "an intimidating, hostile, or demeaning environment for educational pursuits" and was subject to restrictions. Violations could be punished, even by expulsion.
The 1989 suppression of speech began when a male sophomore produced and sold t-shirts with the slogan "Why Beer Is Better Than Women at Tufts," complete with 15 reasons, all demeaning to women there. A woman complained to the associate dean of students, and the offender was placed on probation and required to perform 50 hours of community service. Charges were dropped, however, when it was pointed out that the school had no code outlawing such speech (which was no surprise in view of the historic paramount importance of academic freedom on this liberal arts campus). To remedy that gap in order to prevent future "offense," the administration promulgated the "speech zones" plan. When the students learned of this, an ad hoc group dubbing itself the "Tufts Free Speech Movement" went around the campus and physically marked off zones where speech was either "Free" or "Unfree." The university looked like Berlin in 1946. The protest made it clear to students, the news media, alumni, and indeed the world that this major university was seeking to censor its students. The administration, embarrassed and under pressure from a very broad coalition of students, promptly retreated.
It was therefore with considerable surprise that FIRE recently received a copy of a memorandum to the entire "Arts and Sciences Community" at Tufts, bearing the signature of Vice-President for Arts, Science and Technology, Melvin Bernstein. The memorandum introduced a pamphlet entitled "Confronting Intolerance." Students were advised: "If you are experiencing harassment, you need to know that it can be stopped." They were instructed to report verbal offenses to an administrator—and Tufts, like nearly every other college and university today, is top-heavy with administrators who monitor and control virtually every aspect of campus and social life.
Of course, it is perfectly appropriate to punish real harassment, but the big question is precisely what is considered punishable harassment. In the pamphlet, one learns that Bernstein informed the student body that mere offensive speech sufficed to set into motion the coercive administrative machinery, so that "it [such speech] can be stopped." The pamphlet, in short, told students that if they felt harassed by speech that they found offensive, there was a solution, namely, censorship.
Lest the message be missed, the pamphlet went on to give "some examples of intolerance" that would qualify as banned "harassment." Here are a few of them:
- Using demeaning or derogatory slurs
- Name calling
- Stereotyping of the experience and background skills of individuals based on their group identity.
- Treating people differently solely because of their appearance.
- Making jokes about others' backgrounds
- Using words or negative images associated with a group on signs to create a publicly hostile environment
And, finally, the crowning insult to liberty
- Attributing objections to any of the above to the "hypersensitivity" of others who feel hurt.
In other words, not only were Tufts students prohibited from saying anything or telling a joke that would upset some oversensitive student who believed that he or she was entitled to four offense-free years before venturing out into the real world where offense is protected by the First Amendment, but if a student even commented on such "hypersensitivity," that in itself constituted a separate offense of harassment!
Vice-President Bernstein and Acting Dean of Students Bruce Reitman, agreed to be interviewed on this unnoticed re-emergence of speech restrictions at Tufts. Reitman remembered the 1988 t-shirt imbroglio that resulted in the 1989 "speech zones" regulations soon repealed by President Mayer. He also remembered both the student discussions, teach-ins, and protests that forced the repeal and the embarrassing national publicity that descended upon Tufts. Bernstein, although not then at Tufts, had learned of this painful history. That was why, they assured us, there never again were, nor would there be, speech restrictions at Tufts, which both concurred would constitute a violation of academic freedom.
After a closer examination of the "Confronting Intolerance" pamphlet, both Bernstein and Reitman agreed that the phrase "it can be stopped" could be understood as a warning that mere speech deemed "intolerant" or "harassing" was punishable on the Tufts campus. Indeed, in contrast to the code of the prior decade, the current policy, as interpreted by this pamphlet, did not even allow for any "free speech zone" where offensive speech would be tolerated. In that sense, the current proposed policy and interpretation were more restrictive than those finally deemed inconsistent with academic freedom by President Mayer in 1989. Bernstein said flatly that the phrase "can be stopped" would be removed from the pamphlet when it was revised next year.
Even a brief examination of Tufts' official anti-harassment and anti-bigotry policies suggests why these administrators felt empowered to issue a pamphlet that told students, in effect, that they were not free to say offensive things. What is less clear is why no one in the Tufts administration, until the meeting with Harvey Silverglate, recognized that the pamphlet, and the codes that it interpreted, were in fact a clear infringement on free speech. Somehow, college administrators all over this country have come to believe that suppressing speech found offensive by administrators and by certain categories of selected individuals is not censorship. That is a worrisome development.
It is little wonder that Bernstein and Reitman felt free to advise students that offensive speech at Tufts "can be stopped." The University's published "harassment policy," which has been in effect for several years, purports to protect students from "harassment or discrimination" on the basis of race, religion, ethnic or national origin, gender, sexual orientation, disability or age. It goes on to state what is forbidden in terms that are extraordinarily vague and overbroad:
When attitudes and opinions are expressed not only in words but in behavior (such as annoying acts, threats, intimidation, some verbal acts and physical assault), they constitute harassment, which is prohibited and may result in serious disciplinary consequences, up to and including expulsion from the university.
It is impossible from this section of the code to tell whether mere offensive words—words that do not constitute a "threat" (threats do not, of course, enjoy legal protection on or off the campus)—can subject a Tufts student to discipline. This ambiguity appears to have persisted until the start of the 1999-2000 academic year when Bernstein's office distributed the pamphlet that came down on the side of the broadest interpretation of the policy's speech ban, namely that offensive speech "can be stopped." Hence, while modifying the pamphlet will be a good first step toward restoring free speech on the Tufts campus, it is clear that the entire harassment policy has to be examined with the protection of academic freedom in mind. In fairness to Tufts, it must be said that such an examination needs to be undertaken at the overwhelming majority of American colleges and universities, where the therapeutic model of the governance of student life has made deep incursions into academic freedom.
The discussion with Bernstein and Reitman never got to the issue of reexamining the codes that the advisory pamphlet interpreted. Nor did the discussion reach the equally fundamental question of what right the administration of a liberal arts college has to insist that students adopt a certain attitude toward their fellow students. After all, isn't a liberal arts education supposed to give students the intellectual tools with which to make important moral decisions about their lives and with which to examine and revise their attitudes in accordance with the lights of their own intellect and conscience? Do we really need to foster what the cultural critic and author Wendy Kaminer refers to as the "therapeutic state" on a campus of higher learning? Are social engineers, orthodox policies, and repressive interpretive pamphlets truly appropriate to fostering "proper" attitudes in college students? Where is our faith that the best way of producing a decent society is to give students a solid liberal arts education and to encourage them to make decisions as free, autonomous human beings? Do today's college administrators really fear that the educations which their institutions provide are inadequate to produce citizens capable of making decent and enlightened decisions on their own?
At least for now, however, overt restrictions against "offensive" speech are, once again, dead at Tufts. How long will the corpse of coercion stay buried this time? Until the fundamental underpinnings of this demeaning approach to the control over young citizens' hearts and minds are thoroughly reexamined, the answer at Tufts and other campuses may be "not for long." Perhaps, however, Tufts, with its long history of respect for academic freedom, will take this opportunity to lead the way in conducting this long-overdue reexamination. Moral witness and free speech, not a police state, are the friends of both education and liberty. FIRE will continue to monitor the situation at Tufts, as it will continue to monitor the state of freedom, dignity, and respect for conscience throughout American higher education.
Harvey Silverglate is coauthor of The Shadow University: The Betrayal of Liberty on Americaï¿½s Campuses, and Vice President of the Foundation for Individual Rights in Education (www.TheFire.org).
Gia Barresi is a legal assistant at Silverglate & Good, a Boston law firm.