Stanley Fish Book Treats Speech Codes, ‘Indoctrinate U,’ and Free Speech

There is a lot in Stanley Fish's new book "Save the World on Your Own Time" that college and university faculty--and administrators--should take seriously. The title alone points to an argument about activism versus professional responsibility in higher education. The book deserves a full review--including a comparison with Fish's 1995 book, "There's No Such Thing As Free Speech . . . And It's a Good Thing, Too." For our purposes here, however, I will focus on just a few key passages on free speech, speech codes, and "Indoctrinate U," a film based in large part on FIRE cases.

First, on free speech in the classroom and its cousin, academic freedom, turn to Chapter Four, "Don't Try to Do Someone Else's Job." The essence of the chapter (as well as the book) is captured concisely in lines like this one:

It is a question finally of what business we are in, and we are in the education business, not the democracy business. Democracy, we must remember, is a political not an educational project. (71)

When FIRE advocates against thought reform, it's because we believe that adult students must be allowed to make up their own minds without coercion. Fish goes so far, however, as to deny instructors the freedom to make choices that involve any personal idea whatsoever of what is good. Thus, Fish seems to take a limited view of academic freedom:

As an instructor I can conduct my class in any manner I like . . . and I can assign whatever readings I judge to be relevant to the course's topic. Those are pedagogical choices, and I cannot be penalized for making them.

But if I harass students, or call them names, or make fun of their ethnicity, or if I use class time to rehearse my personal political views or attempt to win students over to them, I might well find myself in a disciplinary hearing, either because I am abusing my pedagogical authority or because I am turning the scene of instruction into a scene of indoctrination. (83)

Indeed, true harassment is not protected, and a liberal education seems incompatible with "indoctrination." But after that, I'm not sure-so much depends on the context, and it's perhaps best to evaluate these situations on an ad hoc basis.  Even when it comes to a rule against calling students names or making fun of something that involves a student's ethnicity (or some other characteristic with which a student identifies), FIRE has seen far too many cases where something that should not in any way be actionable is turned into an allegation of "harassment." Take, for instance, the case of Professor Donald Hindley at Brandeis, who was found guilty of discriminatory harassment after he critiqued the use of the term "wetbacks" in a class where the topic was entirely relevant. A rule against bringing up "personal political views" seems like it might be even more prone to abuse by administrative censors.

Second, Fish devotes a full five pages to the issues raised by Evan Maloney's "Indoctrinate U" (pp. 147-52). Of special interest to FIRE is this passage on speech codes:

Then there's the matter of speech codes. This is a fake issue. Every speech code that has been tested in the courts has been struck down, often on the very grounds-you can't criminalize offensiveness-invoked by Maloney. Even though there are such codes on the books of some universities, attempts to enforce them will never hold up. Students don't have to worry about speech codes. The universities that have them do, a point made by Indoctrinate U when Maloney tells the story of how Cal Poly was taken to the cleaners when it tried to discipline a student for putting up a poster with the word "plantation" in it. (149)

Fish is right only insofar as speech codes at public universities have failed to pass constitutional muster when challenged in court for nearly 20 years now. (See, most recently, the successful challenge at Temple University.) But to say that speech codes are a fake issue is dead wrong. It is hard to believe that Fish even believes this assertion if he acknowledges even one of these points:

• Speech codes are indeed used frequently to punish students and professors. For instance, University of New Hampshire student Tim Garneau ran afoul of speech regulations, was kicked out of his dorm, and spent three weeks living out of his car-in November, in New Hampshire. Is this a fake problem? Is Fish's response to Garneau that he should have taken the school to court when he had the chance?
• Fish does not acknowledge the "chilling effect" that causes the speech codes to be rendered unconstitutional in the first place. Is he arguing that every student, upon reading university rules that prohibit things like "telling sexual jokes or stories," knows that he or she doesn't have to worry about the rules because any prosecution would be ultimately overturned by a federal court?
• The speech codes at private universities cannot easily be struck down by courts, for the First Amendment does not apply to these schools.
• Speech codes actually miseducate students about their free-speech rights by banning what is protected and teaching that censorship is a valid function of government.
• Most students do not have the resources, financial, legal, or otherwise, that the student at Cal Poly managed to find (with FIRE's help) to launch a legal attack on a speech violation. Meanwhile, the speech code stays on the books, chilling the speech of every other student (and faculty member) who knows what will happen when he crosses the speech code police.

Before FIRE existed, even public universities had little to fear in prosecuting students under Orwellian codes for speech and thought. If speech codes ever truly become a "fake issue," it will only be through the tireless efforts of FIRE and our allies-and we are far from that point. To say that speech codes are on the books of only "some" universities is a wild understatement. FIRE has documented hundreds of speech codes now on the books of private and public colleges and universities. The problem of speech codes is a very real and pervasive issue.

We have addressed Fish's argument on this topic before.

Finally (for now), Fish takes Indoctrinate U to task for clouding the essential issue with which he is concerned: "those who confuse advocacy with teaching":

Academics often bridle at the picture of their activities presented by Maloney, and other conservative critics and accuse them of grossly caricaturing and exaggerating what goes on in the classroom. Maybe so, but so long as there are those who confuse advocacy with teaching, and so long as faculty colleagues and university administrators look the other way, the academy invites the criticism it receives in this documentary. In 1915, the American Association of University Professors warned that if we didn't clean up our own shop, external constituencies, with motives more political than education, would step in and do it for us. Now they're doing it in the movies and it's our own fault. (152)

That's pretty much how I see it, too, except that here at FIRE, our political motives do not extend beyond promoting and protecting individual rights in higher education. I'd like to think that Fish ignores FIRE in his book (though he has paid significant attention to us before) because he thinks we're getting it right on that score. Meanwhile, we have plenty of work on our hands.