East Germany Hits Virginia
I’ve heard of speech codes, but I’ve never heard of anything quite like this: a mechanism to anonymously report "bias related to race, gender, sexual orientation, religion, or other protected conditions" to the university administration, for possible action against the perpetrator. This system has been set up at William and Mary, and a website protesting it can be found here. Is this something new, or at least rare, or is it perhaps more common than I realize?
InstaPundit seems to echo this concern, as have some readers who have e-mailed me.
It seems to me that these concerns are somewhat overstated, at least absent more facts about how the system is being used. Let me briefly explain why.
1. The College is certainly free to punish biased conduct, such as beatings or vandalism, and even a narrow zone of speech, such as threats. In fact, it should punish such behavior, though I'm not one of those who thinks that bias-motivated beatings, vandalism, or threats should generally be punished more than other beatings, vandalism, and threats. What's more, the College's Web page acknowledges that "because the expression of an idea or point of view may be offensive or inflammatory to some, it is not necessarily a bias-related incident. William and Mary values freedom of expression and the open exchange of ideas and, in particular, the expression of controversial ideas and differing views that is a vital part of civil discourse."
2. The Web page does go on to say, "While this value of openness protects controversial ideas, it does not protect harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." This leaves open the possibility that the College will punish protected speech as "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities"; but it also leaves open the possibility that only unprotected speech (such as threats) would be covered.
On first reading, the statement of rights and responsibilities didn't strike me as particularly troubling — the most clearly relevant responsibility there seems to be the duty to obey "the general law," which I take it means no vandalism, assault, threats, and the like. If William & Mary starts punishing protected speech, then it should be condemned for that. And, more broadly, I would condemn it for not being more precise about what exactly constitutes, in its view, punishment "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities." But on balance the College's Web page and the statement of rights and responsibilities — which do provide pretty broad and specifically worded assurances of speech protection — don't seem extremely troubling.
3. This then gets us to what seems to have triggered the "East Germany" reference: The encouragement of anonymous complaints. I know many of my friends are very troubled by such complaints, and I can see their possible costs. But they also have substantial benefits, and I would not roundly condemn institutions that encourage them, at least until I see the institutions misusing them.
In fact, we almost always allow and often encourage confidential reporting of alleged misconduct — poor performance by a company's or government agency's employees, street crime, corporate crime, and so on. We do this because we realize that without the promise of anonymity, people will often be chilled from speaking about misconduct.
Of course if a school or a police department acts badly based on an anonymous complaint — restricts speech, or punishes someone based on the anonymous allegations — then that's bad. But anonymous tips are often useful for investigation, even if they can't be used in the actual adjudication.
Say, for instance that a student (1) sees evidence that a classmate is cheating, (2) hears a professor say in class "If you express an anti-abortion view on the exam, you'll get an F," or (3) hears some acquaintances brag about how they've beaten up a gay student (or, if you prefer, a Muslim student, a white student, and so on). In any of these cases, the student might well want to alert the authorities without revealing his name, and opening himself up to retaliation. And the anonymous tip may well lead to the discovery of credible evidence (whether tangible evidence or nonanonymous testimony).
It seems to me we should indeed allow and even encourage such anonymous tips, while of course remaining suitably skeptical about such tips, insisting that actual punishment not turn on such tips, and insisting that protected speech (as opposed to violence, vandalism, or threats) not be punished at all, whether based on anonymous tips or on nonanonymous ones.
UPDATE: A bit of further looking led me to a page that might be occasion for more worry:
What is Bias?
A "bias incident" consists of harassment, intimidation or other hostile behavior that is directed at a member of the William and Mary community because of that person's race, sex (including pregnancy), age, color, disability, national or ethnic origin, political affiliation, religion, sexual orientation, or veteran status. A bias incident may be verbal (whether spoken or written) or physical.
If you are not certain whether an occurrence meets the above definition, please report the occurrence under this protocol and allow the College to make the determination.
If you wish to report an incident of bias, you may do so by contacting the Chair of the Bias Reporting Team. Please, if this is an emergency, contact Campus Police at 911.
Certainly some of this "hostile behavior" is properly punishable (e.g., a physical attack or a threat), some is constitutionally protected (e.g., among many other examples, "hostile behavior" in the form of statements condemning the target's religion, political affiliation, sexual orientation, or veteran status), and some may be occasion for further investigation though not itself actionable (e.g., hostile statements that might suggest that the speaker has in the past engaged in other violence or vandalism, and that should lead the College to look further at whether the speaker has indeed done so). And the statements break down into these three categories regardless of whether or not they are submitted confidentially.
The question is what the College will do with the reports: Will it punish just the constitutionally unprotected behavior, or will it try to punish the constitutionally protected speech as well? As I noted above, the College should be faulted for not being more precise in its definitions. But the East Germany comparisons, it seems to me, should wait until there's more tangible evidence that the College is indeed punishing, or even attempting to punish, protected speech.
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