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U.S. Civil Rights Commission Seems To Call for Campus Speech Codes:

The Commission's April 3 "Findings and Recommendations ... Regarding Anti-Semitism" state:

The United States Commission on Civil Rights issues the following findings and recommendations regarding incidents of anti-Semitic harassment at college campuses throughout the Nation: ...

[Finding] 1. Many college campuses throughout the United States continue to experience incidents of anti-Semitism.... While incidents of threatened bodily injury, physical intimidation or property damage are now rare, they have been alleged on some campuses. On other campuses, students have alleged patterns of threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry. When severe, persistent or pervasive, this behavior may constitute a hostile environment for students in violation of Title VI of the Civil Rights Act of 1964.

[Finding] 2. On many campuses, anti-Israeli or anti-Zionist propaganda has been disseminated that includes traditional anti-Semitic elements, including age-old anti-Jewish stereotypes and defamation. This has included, for example, anti-Israel literature that perpetuates the medieval anti-Semitic blood libel of Jews slaughtering children for ritual purpose, as well as anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial. Such propaganda should be distinguished from legitimate discourse regarding foreign policy. Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism.

[Finding] 3. Substantial evidence suggests that many university departments of Middle East studies provide one-sided, highly polemical academic presentations and some may repress legitimate debate concerning Israel. This would include, for example, any program in which a student is told that she may not speak in a discussion of Middle East politics on the ground that she has ethnic Jewish physical characteristics....

[Recommendation] 1. [The U.S. Department of Education Office for Civil Rights] should protect college students from anti-Semitic and other discriminatory harassment by vigorously enforcing Title VI against recipients that deny equal educational opportunities to all students. University leadership should affirm their commitment to equal educational opportunity, including ensuring that students are not subjected to a hostile environment on the basis of race, national origin or religion.

[Recommendation] 2. University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. In addition, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom.

[Recommendation] 3. University leadership should ensure that all academic departments, including departments of Middle East studies, maintain academic standards, respect intellectual diversity, and ensure that the rights of all students are fully protected. Federal grant-making institutions should exercise appropriate oversight to ensure that federal funds are not used in a manner that supports discriminatory conduct.

[Recommendation] 4. [The Office for Civil Rights] should conduct a public education campaign to inform college students of the rights and protections afforded to them under federal civil rights laws, including the right of Jewish students to be free from anti-Semitic harassment....

As is common with talk of "harassment," the exact scope of the suggested speech restrictions is left maddeningly vague. Clearly the Commission thinks that universities have a legal duty under Title VI to restrict "severe, persistent or pervasive" "anti-Semiti[c]" speech, including "derogatory remarks ... and use of Swastikas and other symbols of hatred or bigotry" — which is to say to restrict speech that expresses certain viewpoints in a way that creates a supposedly "hostile environment."

Presumably this would also include "anti-Israeli or anti-Zionist propaganda" "that includes traditional anti-Semitic elements," such as "anti-Zionist propaganda that exploits ancient stereotypes of Jews as greedy, aggressive, overly powerful, or conspiratorial" — at least so long as it's not "legitimate discourse regarding foreign policy." The Commission doesn't expressly say that such speech must be prohibited, as it does in finding 1. But finding 2 is apparently one of the Commission's findings "regarding incidents of anti-Semitic harassment at college campuses throughout the Nation," so the Commission presumably thinks that such "anti-Semitic bigotry" may indeed harassment and thus prohibited by Title VI (assuming that it's "severe, persistent or pervasive," whatever exactly that means).

Now when a university or a professor restricts a student from speaking because "she has ethnic Jewish physical characteristics," that is indeed discriminatory exclusion of a student from an activity, and not just offensive speech on the university's or professor's part. But finding 3, which discusses this, also includes more broadly "one-sided, highly polemical academic presentations," and possibly "repress[ion of] legitimate debate concerning Israel" that operates through protected speech (e.g., ridicule). It sounds like the Commission is willing to call these "anti-Semitic harassment," too, which would presumably require universities to suppress them, again if they're "severe, persistent or pervasive."

(Note that private universities are generally free to suppress one-sided, highly polemical academic presentations, and public university might be as well, if those presentations are in the classroom. But I don't think the federal government is free to require private and state universities to do this, even using conditions attached to broad funding programs, such as Title VI.)

It's true that the proposal mentions, in recommendation 2, that universities should nonetheless "safeguard[] all rights protected under the First Amendment and under basic principles of academic freedom." But this doesn't put me much at ease, given many people's claims that the First Amendment and academic freedom don't protect speech that creates a "hostile environment." Certainly the Commission takes the same view that some speech — not just "threatening or intimidating behavior" but also "derogatory remarks" and "use of Swastikas and other symbols of hatred or bigotry" — is legally actionable and thus presumably constitutionally unprotected.

The Commission believes that students have a legal "right" "to be free from anti-Semitic harassment." It seems willing to suggest that such harassment would include certain "anti-Israeli," "anti-Zionist," and "anti-Semitic" "propaganda," plus perhaps also "one-sided, highly polemical academic presentations" along those lines. It sounds then like the Commission doesn't take a particularly expansive view of the First Amendment in this field.

In any event, this strikes me as quite troubling. Anti-Semitism should definitely be denounced, and anti-Semitic violence and threats should be punished. But universities shouldn't have speech codes — including ones framed in terms of banning speech that is "severe, persistent or pervasive" enough to create a "hostile environment" — to suppress expressions of anti-Semitic ideas, just like they shouldn't have speech codes to supress the expression of anti-American, anti-black, anti-white, anti-women, anti-men, anti-Catholic, anti-atheist, or anti-gay ideas.

(I should note, by the way, that though the report I cite was issued on April 3, it had been covered very little, which is why I originally missed it; I wish I'd covered it when it came out, but it seems worth criticizing even a couple of months after its release.)

Medis:
It seems to me a lot of the potential trouble is caused by the phrasing of Recommendation Two:

"University leadership should ensure that students are protected from actions that could engender a hostile environment in violation of federal law. IN ADDITION, university leadership should set a moral example by denouncing anti-Semitic and other hate speech, while safeguarding all rights protected under the First Amendment and under basic principles of academic freedom." (emphasis added)

The interposition of "in addition" is troubling to me for at least two reasons.

First, the university leadership should be safeguarding the rights and interests mentioned at the end of this passage even while protecting students from actions that could engender a hostile environment. Although probably inadvertent, this phrasing makes it seem as if these side-constraints apply only to administration efforts to set a moral example.

Second, norm-reinforcing efforts should be strongly preferred as the primary remedy for student actions allegedly creating a hostile environment, at least when those actions fall short of constituting threats, physical intimidation, damage to property, or other acts not normally afforded First Amendment protection. In general, I think direct administrative remedies should be a last resort when it comes to student speech (with teacher speech, I think the administration is entitled to exercise direct control more actively, although only as consistent with principles of academic freedom and the Pickering-Connick test).
6.19.2006 6:40pm
William (mail) (www):
I agree that "one-sided, highly polemical academic presentations" is a terrible standard to use in regulating university cirriculum. This smacks of the "all professors have a liberal bias" debate in Colorado a few years ago. The answer to this controversy should be the same: academics must have the ability to engage their students from all variety of viewpoints. The Constitution grants members of Congress freedom of speech during debates on the floor of Congress. Why should the academy be any different?
6.19.2006 7:07pm
Hans Bader (mail):
The Commission should follow the Supreme Court's more limited definition of hostile environment, rather than, as it appears to be doing above, following the broader education department definition of harassment implicitly rejected by the Supreme Court in its Davis and Gebser decisions.

In its Davis v. Monroe County Board of Education (1999) decision, the Supreme Court said four times that harassment has to be "severe, pervasive, AND objectively offensive" to violate Title IX or Title VI (emphasis added). So speech has to be not just pervasive, but also, among other things, severe, before schools are held liable for not responding to it.

By contrast, the Education Department, in pre-Davis language quoted by the Commission, says in its Title IX interpretive guidance that harassment only needs to be severe OR pervasive OR persistent for their to be liability.

Pervasiveness of non-severe racist or sexist speech is not enough under the Supreme Court's educational harassment jurisprudence, unlike the Supreme Court's WORKPLACE harassment jurisprudence, under which it is enough to show that harassment is severe OR pervasive.

That appears to be lost on many lower courts, which assume that pervasiveness alone is enough even if the racist or sexist speech is not severe. See, e.g., the opinions in the vacated decision in Jennings v. University of North Carolina (4th Cir. 2006), which debate whether repeated offensive remarks in a school setting met the "severe or pervasive" test that applies to the workplace.

Requiring that speech be both severe AND pervasive before it must be banned gives much more breathing space to campus speech, and complies with the Supreme Court's express language in Davis. It also reduces the need for campus speech codes.
6.19.2006 7:14pm
Hans Bader (mail):
The First Amendment isn't subordinate to Title VI or Title IX, as the Commission may believe.

In UWM Post, Inc. v. Board of Regents of University of Wisconsin, 774 F.Supp. 1163 (E.D. Wis. 1991), the court rejected the argument that since workplace speech is substantially restricted by Title VII, campus speech could be similarly restricted by Title VI, the law banning racial discrimination in federally funded educational institutions.

"Title VII is only a statute, it cannot supersede the requirements of the First Amendment," said the court.

The court went on to strike down a campus ban on "verbal harassment" as a violation of free speech.
6.19.2006 7:21pm
PersonFromPorlock:
It's interesting that absolutely no one here -- not EV, nor the Commission, nor the college administrations, nor the faculties, nor any commenter to this point -- has suggested that the Jewish students subjected to 'hate speech' might say something vigorous back.
6.19.2006 10:56pm
Ken Arromdee:
It's interesting that absolutely no one here -- not EV, nor the Commission, nor the college administrations, nor the faculties, nor any commenter to this point -- has suggested that the Jewish students subjected to 'hate speech' might say something vigorous back.

Probably because the whole reason these protections need to be given to Jews in the first place is that they're already being used in an unbalanced way to protect those who don't like Jews or Israel. Saying that Jews can respond vigorously means that instead of protecting the Jews the protection would be taken away from the left and the Muslims, and there's no way that would be allowed to happen.

I'm not crazy about speech codes, but I'm even less crazy about speech codes that only work in one direction, which it probably was before Jews finally got to be included in them too.
6.20.2006 1:07am
Medis:
PersonFromPorlock,

I agree that the best remedy for bad speech is usually more speech. But I think responding with speech to "threatening or intimidating behavior, derogatory remarks, vandalism, and use of Swastikas and other symbols of hatred or bigotry" is a community responsibility, and not just a burden that should fall on Jewish students. And I also wouldn't want Jewish students, or others in the community, to respond in kind.
6.20.2006 1:29am
PersonFromPorlock:
Medis: And I also wouldn't want Jewish students, or others in the community, to respond in kind.

Why not? It's their right and responsibility to act in their own self defense, and a sure way to concentrate the community's mind on its responsibility. Left to their own devices, communities usually discover that their responsibility is to 'keep things quiet'.
6.20.2006 9:55am
Ken Arromdee (mail):
Left to their own devices, communities usually discover that their responsibility is to 'keep things quiet'.

One's responsibility when confronted by vandalism and threatening or intimidating behavior (or even just by hatred) is not to keep things quiet.

I wonder what you think blacks should have done in the civil rights era?
6.20.2006 10:27am
Mike BUSL07 (mail) (www):

One's responsibility when confronted by vandalism and threatening or intimidating behavior (or even just by hatred) is not to keep things quiet.

Well, vandalism and threatening behavior amounting to action (rather than speech), should be properly regulated by the Universities, not to mention the government. Moreover, Speech Codes, as they exist now, and has been pointed out, are enforced only insofar as they advance the agenda of the campus orthodoxy.

Still, none of that means that some putz at UC Irvine does not have a 1st Amdt. right to make (idiotic, misguided and bigoted) political speech. He does actually, have that right.

What I would like to see at the end of the day is a greater willingness by Universities to enforce existing rules against vandalism and harassment. It was my experience that much of what the various pro-Palestinian groups do qualifies. Same goes for Amnesty International.
6.20.2006 10:45am
ralph:
What is truly troubling is that we are rapidly developing crimes whose commission is entirely dependent not on "what someone says", but on "how someone else feels about what has been said". PC and sexual harrassment law is leading to a society where everything has to be said in the most genteel and careful manner. I suppose that this helps reduce the overall rudeness and crudity in the society, but it seems that the speech that used to occur face-to-face is now limited to blogs and the occasional right/leftwing-nut organ.

Until, of course, someone decides that having access to "offensive" blogs creates a hostile environment...
6.20.2006 11:28am
Duncan Frissell (mail):
Eugene,

Do you think, all in all, that government provision of "Tertiary Educational Services" is a good thing on either an economic or an educationl basis? These continual political conflicts would seem to diminish the case for such provision.

Should libertarians engage these issues or just reject the whole shooting match?

And why does anyone worry about harrassment of any kind? If harrassed; one can leave, harrass back ("GD commie rag-heads"), or employ well-established self defense techniques legal in all 50 states and the District of Columbia.
6.20.2006 11:29am
Medis:
PersonFromPorlock,

I think this was clear already, but to make sure: I'm not saying that Jewish students should not defend themselves. I'm saying that I wouldn't want them to use the same tactics (threats, intimidation, vandalism, derogatory remarks, symbols of hate and bigotry, etc) to defend themselves.

So, why not?

Short answer: Two wrongs don't make a right.

Medium answer: The worst behavior in a community should not set the community's standard of behavior. A healthy community will set higher standards for behavior, and put pressure on spoilers to raise their behavior to those standards.

Long answer: First, tit-for-tat exchanges have a tendency to escalate conflicts, not limit them. Second, a college is supposed to be a place of learning, and these sorts of activities, particularly as they escalate, can easily become an unjustified distraction from that purpose. Third, a college is supposed to be a cooperative place for learning, and conflicts between students, particularly escalating ones, make it increasingly difficult for students to cooperate. Finally, in line with the medium answer. college is supposed to be a place for the improvement of character, and tit-for-tat exchanges tend to lower the character of everyone involved to the least common denominator, rather than raise the character of the participants to the highest possible standard.
6.20.2006 12:18pm
Thorley Winston (mail) (www):
What I would like to see at the end of the day is a greater willingness by Universities to enforce existing rules against vandalism and harassment.


Agreed, most if not all universities already have rules in place dealing with vandalism and harassment (to say nothing of the criminal code which would allow criminal prosecution in some cases). Instead of trying to launch new rules and initiatives to prevent a "hostile environment," they ought to enforce the rules they already have up to and including expulsion.
6.20.2006 12:55pm
PersonFromPorlock:
Ken Arromdee: Read "responsibility" as being inside scare quotes.

Medis: You're trying to 'immanentize the eschaton'. Had Blacks acted with such restraint, the whole civil rights movement would, at best, have been much slower. Most people don't care about other people's problems -- except to utter pieties -- and the way to make them care is to raise a ruckus that spills over into the greater community.
6.20.2006 1:13pm
Medis:
PersonFromPorlock,

I find your comparison to the black civil rights movement a bit puzzling, given the prominent role "civil disobedience" played in that movement. In that sense, people like MLK obviously thought it would be more effective NOT to respond in kind.

I also think it is obvious that when one is confronting discrimination in legal, governmental, and institutional forms, the rules of engagement might have to be different. Here, though, we are discussing cases where one student is being subject to harassment by another student, and the administration and community at large is presumably on the side of the original target of the harassment. In such a circumstance, I think it is quite likely that the original target responding in kind is more likely to diminish that good will, rather than increase it.

Finally, I agree that "creating a ruckus" may be a good idea, but that doesn't address the issue of what means one chooses to use to further that end. Again, I think that whether the conflict ends with an improvement in character, or rather with a lowering to the least common denominator, can depend in part on the nature of the response. In that vein, and in light of your analogy, I don't think that I can improve on the words of Dr. King, who wrote in his Letter from a Birmingham Jail:

"I have earnestly opposed violent tension, but there is a type of constructive, nonviolent tension which is necessary for growth. Just as Socrates felt that it was necessary to create a tension in the mind so that individuals could rise from the bondage of myths and half-truths to the unfettered realm of creative analysis and objective appraisal, we must we see the need for nonviolent gadflies to create the kind of tension in society that will help men rise from the dark depths of prejudice and racism to the majestic heights of understanding and brotherhood."
6.20.2006 2:32pm
DClawer:
Perhaps I'm over-reacting, but I can't be the only one troubled by the implication of: "Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism."

Sure, bigotry is deplorable. But the implication appears to be that if one does not support the existence of the state of Israel (and is therefore anti-Israel or anti-Zionist), one is anti-Semitic (in the sense of disliking those of Jewish ancestry).

In every other geopolitical question, isn't it possible for a person to feel strongly without being assumed to dislike a distinct group of people? Do we assume that all Unionists necessarily dislike Catholics?

Surely no one supports professors silencing students because they "look Jewish." And normally in the context of undergraduate teaching professors typically shouldn't be shutting down debate at all (that's a lot of what being an undergraduate is about). But the suggestion that faculty members opposed to Israel's existence are necessarily bigoted vis a vis Jewish people just seems scary to me. That's an easy way to end up with an environment where everyone is afraid to criticize the dearly held notions of any vocal minority, lest they be accused of being anti-______.
6.20.2006 8:05pm
Ken Arromdee:
If someone started complaining about Unionists who follow the orders of the Vatican, I might deduce that their dislike of Unionists has something to do with dislike of Catholicism.
6.20.2006 11:39pm
big dirigible (mail) (www):
It seems that the Commission, and about half the commentators here, tend to lump speech issues ("propaganda", "highly polemical presentations", "anti-Israel literature"), which in the US are protected (although from whom, and in exactly which situations, and to what exact degree, remain matters of contention) in the same pot with physical actions ("patterns of threatening behavior", "vandalism", "use of Swastikas" [for what? defacement of private property, such as spray-painting on Synagogue walls?], which are not protected (and shouldn't be).

This is classic "apples and oranges". I should be able to opine that David Ben-Gurion would have been a lousy basketball player, without being treated like I've just punched a Jewish student in the nose. The first should always be protected, the second should never be. Now, is this conflation a product of careless and imprecise thinking, or is it a deliberate tactic of associating certain legitimate activities with other, and less benign, activities, in order to discredit the legitimate ones? It looks to me like the latter. Everyone except the deranged would agree that spray-painting crap on, say, someone else's car should be illegal (it's obvious vandalism, whether there's a Swastika involved or not). But that does not justify the conclusion that someone who adheres to this obvious position must therefore agree with the Commission's recommendations en bloc. However, if he then says no, he doesn't agree with the Commission's recommendations, that does not in turn imply that he thinks that spray-painting Swastikas on cars is protected behaviour.

Now of course this problem is not new. The whole concept of "hostile environment" is evidently meant to obfuscate the obvious distinctions between behaviour we all agree is right out (physical assault, property damage) and behaviour an American should consider protected (the right to have an opinion, no matter how daffy, and the right to talk about it, even within earshot of the chronically offended).

I think progress on these issues depends on keeping distinct concepts distinct. Trying to arrive at decent and honest polices through a haze of generalized obscurity - ie, typical government commission work - is unlikely to succeed.
6.21.2006 12:53pm
r4d20 (mail):

Perhaps I'm over-reacting, but I can't be the only one troubled by the implication of: "Anti-Semitic bigotry is no less morally deplorable when camouflaged as anti-Israelism or anti-Zionism."

Sure, bigotry is deplorable. But the implication appears to be that if one does not support the existence of the state of Israel (and is therefore anti-Israel or anti-Zionist), one is anti-Semitic (in the sense of disliking those of Jewish ancestry).


I hear this alot and yes, pro-Israel extremists can play the race card shamelessly. But I think all reasonable people can agree that the reverse is also true and anti-Semites find it convienient to camoflauge their racial agenda behind ostensible criticsm of Israel.

Some supporters of Israel will bend over backwards to find anti-semitism, but some opponents of Israel will bend over backwards to rationalize remarks that strike me as anti-semitic.


In my experience, however, real accusations of Anti-Semitism are much less common than claims that "they call you anti-semitic for criticising Israel". Time after time I have seen the first mention of anti-semitism coming from a person who is dismissing the charge BEFORE it was ever aired.
6.22.2006 12:55am