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A Bit More on the William & Mary Speech Code:

On reflection, I think I should have faulted William & Mary more for what sounds like an unconstitutional speech code (quite independently of whether it is to be enforced using confidential complaints).

The college's "What is Bias?" Web page defines as a "bias incident" all "hostile behavior", including "verbal (whether spoken or written) [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." The "Bias Reporting" page acknowledges that expression of even offensive ideas is generally protected, but concludes that "harassment or expressions of bias or hate aimed at individuals that violate the college's statement of rights and responsibilities" is not protected — this seems to suggest that all the statements that are labeled "bias incidents" are indeed punishable.

Thus, for instance, condemning a particular student's or professor's religious or political views in any way that is "hostile" — even if it isn't threatening or "fighting words" — would seemingly be punishable, if it's "aimed at" or "directed at" the person. This might be limited to statements said to a particular person; but it might also be read as covering statements said to the public at large in a newspaper or a Web post about a particular person (depending on how "directed at" and "aimed at" is read). The Statement of Rights and Responsibilities seems considerably more speech-protective, and the "Bias Reporting" page restricts its statement about unprotected speech to speech that violates the Statement of Rights and Responsibilities. But the Statement is not crystal clear about what is protected, and the "Bias Reporting" page may be seen as an elaboration on the Statement that makes certain speech punishable.

So William & Mary should, I think, be faulted for seemingly instituting a speech code that potentially forbids a wide range of protected and important speech — or, at best, leaving students unclear about what speech is allowed. I continue to think that the William & Mary initiative's solicitation of confidential complaints is sound, and I'll try to elaborate a little more on this shortly; investigating properly punishable conduct (such as physical attacks, vandalism, and threats) often requires considering confidential complaints. But constitutionally protected speech ought not be punished whether based on confidential complaints or otherwise.

Note also Stanley Kurtz at the National Review Online has some interesting posts in response to my earlier post on this matter, here, here, and here; they're much worth reading. Kurtz also argues that the current William & Mary administration is untrustworthy in other (but related) contexts; I agree that if this is so (I don't know enough about it to be sure), then observers might justifiably be skeptical about how the college's policies are likely to be implemented.

Hans Bader (mail):
Doesn't this policy violate the 4th Circuit decision in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), which struck down on First Amendment grounds the discipline of a fraternity for a racist, sexist blackface skit that the university justified by the need to prevent a "hostile and distracting learning environment" for blacks and women?

This policy reaches speech that falls more clearly within the First Amendment's protection than the speech held protected by that decision.
10.29.2007 1:51pm
John (mail):
Is William and Mary a public (government run) school, or private? The constitutional arguments do not apply, I thought, to private schools, where the matter would be governed by contract. Or am I hopelessly behind the times here?
10.29.2007 2:02pm
John C:
Being a W&M alumni, I am opposed to this "Bias reporting system" for the reasons EV endorsed (it seems to encourage reporting of protected speech), and those that he didn't (the anonymous reporting aspect of it seems, to me, likely to promote a chilled atmosphere of speech on the campus).

One thing bears noting, though - the Kurtz pieces at NRO completely misrepresent what happened in the "Wren Cross episode." What happened, from what I saw over months of watching the controversy closely, was that President Nichol made a boneheaded move in removing a decorative cross from the non-denominational Wren Chapel, without consulting the College community, and the ensuing outcry led the administration to return the cross to the chapel, albeit in some sort of glass case (in order to signify it as a historical piece, not a focus of worship). It was a dumb move by Nichol, totally unnecessary (but probably not totally without foundation), and got blown way out of proportion.

To say that the Gene Nichol cooked up this bias-reporting system to futher some anti-religious agenda (that began with the Wren Cross incident) has absolutely no grounding in any reported fact, and is dubious even as a flight-of-fancy extrapolation from the Wren Cross incident. Kurtz has absolutely no basis for making such a serious charge. VC readers (and anyone else) should not allow their thoughts on the bias reporting system to be colored by some baseless, politically-tinged fear-mongering by Kurtz.
10.29.2007 2:05pm
Hans Bader (mail):
The College of William and Mary is a public college, to answer the second comment above. That means it is subject to the strictures of the First Amendment. See Thonen v. Jenkins (4th Cir. 1973) (free speech on public college campus is generally "coextensive" with that in society at large, according to federal appeals court with jurisdiction over College of William &Mary).

This policy violates the Fourth Circuit decision in Iota Xi Chapter of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386 (4th Cir. 1993), which struck down on First Amendment grounds the discipline of a fraternity for a racist, sexist blackface skit that the university justified by the need to prevent a "hostile and distracting learning environment" for blacks and women.

This policy reaches speech that falls more clearly within the First Amendment's protection than the speech held protected by that decision.
10.29.2007 2:10pm
PersonFromPorlock:
It's interesting that the college is asserting control over activity "that is directed at a member of the William and Mary community." Apparently the W&M Young Republicans can burn down unaffiliated Black Churches and the Young Democrats can stone evangelical Christians without arousing the administration's ire.
10.29.2007 2:14pm
Connecticut Lawyer (mail):
One thing you can be sure of, if a William and Mary student calls another student a "faggot," he will be punished, severely, but he calls another student a "racist," he will be praisd for his sensitivity.
10.29.2007 2:33pm
Eric Muller (www):
It has been very useful to me to read Eugene's thoughtful exploration of this issue.

Thus far, in my view, there has been little that it "thoughtful" about the public discussion of this issue, or of the Wren Chapel issue that is this issue's forebear.

Rather, the discussion appears to me mostly a highly politicized effort to expel Gene Nichol from the presidency of William and Mary -- just another battle, in other words, in the campus culture wars.

I hope that this post, Eugene's second, is not now run by others proudly up the "ditch-Gene-Nichol" flagpole. ("Noted First Amendment Scholar Eugene Volokh Agrees That Nichol's System Is Illegal").

But I'm guessing it will.
10.29.2007 2:34pm
Le Messurier (mail):
Somebody please enlighten me. Isn't a speech code, however you call it, a restriction of speech by definition? If this is so how can any lawyer worth his JD support the existence of a speech code? But here on this thread they analyze the minutiae of it's wording. It boggles my mind that people here, including EV, are not hammering the existence of this or any speech code instead of reading nuances into its meaning. I'd be interested to know just what good they do and how they further the educational goals of a University.
10.29.2007 2:35pm
justwonderingby:
For crying out loud, am I the only one who thinks the idea of ANY speech code in an institution of higher education is anathema to the basic principles of higher education?

In a short 30 years, we've moved from universities being the hotbeds of free thinking to gulags of forced thinking. I wonder what all of the hippies would have thought had these oppressive speech codes been implemented against them.
10.29.2007 2:51pm
John C:

Somebody please enlighten me. Isn't a speech code, however you call it, a restriction of speech by definition? If this is so how can any lawyer worth his JD support the existence of a speech code? But here on this thread they analyze the minutiae of it's wording

For crying out loud, am I the only one who thinks the idea of ANY speech code in an institution of higher education is anathema to the basic principles of higher education?


Indeed . . . instead of reading the policy carefully to determine whether it conforms with long-standing legal doctrines (developed over the years by individuals whose commitment to good-faith interpretation of the Constitution isn't questioned) and higher-level free expression values, let's call it a "speech code," demagogue a little bit, and call it a day. Good idea.
10.29.2007 3:10pm
Patrick216:
John C.:

I'm a W&M alum, too, though probably a little less recent than you (c/o 2000). I don't have first hand knowledge of what happened with the Wren Cross, but your telling of events seems a little more accurate than Kurtz's over at NR. Still, it is very troubling that Nichol would disappear the Wren Cross on the sly and for no apparent reason. You characterize his move as "boneheaded" -- fine. But surely we don't want the president of a major university to make that huge an error in judgment. (For what it's worth, I happen to believe Nichol was advancing an anti-religious, left-wing agenda by taking the action he did.)

When I was at W&M, it was a great school. The faculty and administration for the most part seemed to understand that political diversity was something worth having. Now, just as with the Wren Cross incident, you have Gene Nichol for no apparent reason implementing a speech code. I reviewed W&M's "Bias Reporting System" web site and it is not clear what enforcement power the "Bias Reporting System" has. But given that the W&M police and the dean of students both sit on the committee, you have to believe the committee can institute criminal, civil, and adminstrative action against someone accused of bias. The thought of college administrators putting on their jack boots and stomping on the necks of anyone who dares utter conservative speech is incredibly worrisome to me -- and it should be to any member of the W&M community.

Again I say, I am very angry that Gene Nichol is dragging the name of this venerable university through the mud.
10.29.2007 3:28pm
John C:
Patrick216,

I think the devil is in your editorial hyperbole. While I agree that "it is very troubling that Nichol would disappear the Wren Cross on the sly," it was not "for no apparent reason". Nichol clearly stated time and again that he believed it was impermissible (or just unwise) for a state school to maintain an explicitly Christian chapel. You may disagree with his legal conclusion (or his administrative decision that it was just a bad idea), but that, to me, in no way indicates an "anti-religious, left-wing agenda." Such actions could just as easily be termed pro-religious (non-Christian, that is). As far as "left-wing," I don't know what that is supposed to mean.

Further, your claim that "Just as with the Wren Cross incident, you have Gene Nichol for no apparent reason implementing a speech code," was addressed in my earlier post - what does "speech code" mean? The constitution clearly allows for a "speech code" of some sort - obscene speech is punishable, as are threats, etc. The only question is whether W&M overstepped the bounds of what is an acceptably narrow "speech code." There are very legitimate reasons for making "speech codes"; if you have reasons why you disagree with this one, I would be interested in hearing them (mind you, I disagree with the Bias Reporting System).

As far as your comment that "[t]he thought of college administrators putting on their jack boots and stomping on the necks of anyone who dares utter conservative speech is incredibly worrisome to me," not only violates Godwin's law, but doesn't make sense on its own terms - if the (misguided) attempt of Nichol is to have racist or otherwised biased speech reported, why is that targeting "conservative" speech? I didn't realize that racist or bigoted speech was conservative. And to the extent you actually think that Nichol is targeting "conservative" speech, whatever that is, there is not a scintilla of evidence that that is true, or that it was Nichol intended (to the extent that we even know that this "speech code" was intitiated or developed by him, which we don't). Political correctness gone overboard? Yes. Stomping out of "conservative" speech? Sounds like bad talk radio.
10.29.2007 3:47pm
Richard Aubrey (mail):
John C.
Ref yr. last sentence.

Sure does. Until it happens. Then it's "tough luck, chump."
10.29.2007 4:18pm
Swede:
Lefty loves the speech code, doesn't he?

And "hate words".

Was Orwell writing about future government or college campuses?



Worth saying again.
10.29.2007 9:11pm
markm (mail):
"I didn't realize that racist or bigoted speech was conservative." No, but there are plenty of people on any campus ready to call conservative speech racist and bigoted...
10.30.2007 2:10pm