By Gary Pavela

(Reprinted with the permission of the author from The Chronicle of Higher Education Review, Volume 53, Issue 15, Page B14.)

Gary Pavela, University of Maryland

I often ask audience members at higher-education conferences how many of them come from campuses with “hate speech” codes. A substantial minority raise their hands, confirming research that about a third of the nation’s colleges and universities continue to promulgate student disciplinary rules prohibiting expression that “subordinates” others or is “demeaning, offensive, or hateful.”

Such continued adherence to speech codes is by now predictable, but remains puzzling. From a lawyer’s perspective, the courts have spoken: Broadly written speech codes adopted by public institutions – and private institutions adhering to First Amendment standards – are unconstitutional. The legal parameters are becoming so well settled that enforcement of those codes may expose public-college administrators to personal liability for violating clearly established constitutional rights.

Understanding the speech-code phenomenon, however, requires looking beyond the law to the realities of campus politics. However sporadically enforced, speech codes serve the administrative purpose of broadcasting an easily identifiable institutional commitment to providing a safe and welcoming environment to a wide array of presumably vulnerable students. What’s rarely considered, however, is the likely long-term impact on those very students whom administrators seek to protect.

We live in a disputatious society. Beyond a few narrowly defined exceptions to the First Amendment (such as “true threats,” defamation, and “severe or pervasive sexual harassment”), our graduates won’t be able to turn to a protective government to silence expression they don’t like. How are we preparing them to participate in a contentious marketplace of ideas, other than training them to shout a reflexive “Shut up!”?

Court cases testing the limits of the First Amendment usually involve provocative expression. Provocative expression, in turn, tends to be associated with social, political, or ethnic minorities’ striving to make themselves heard. Those minorities will be at greatest risk from speech- code enforcement, since majorities on college campuses and elsewhere are unlikely to censor themselves. A classic example in the higher-education setting is the 1973 U.S. Supreme Court decision in Papish v. Board of Curators of the University of Missouri. The petitioner in that case – a journalism graduate student with a prior history of circulating what the university regarded as “pornographic, indecent and obscene” literature from the Students for a Democratic Society – was expelled for selling an underground newspaper that featured a front-page cartoon depicting policemen raping the Statue of Liberty and the Goddess of Justice, and that contained an article with an expletive as a title.

The Supreme Court reversed the student’s expulsion and stated that “the mere dissemination of ideas – no matter how offensive to good taste – on a state university campus may not be shut off in the name alone of ‘conventions of decency.’” The court rejected the argument that the expression was “obscene” (i.e., appealed to prurient interests) and concluded that “precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected.”

There is nothing remarkable about the court’s conclusion. It echoes Justice Hugo Black’s classic dissenting opinion in Communist Party v. Control Board (1961) that the “freedoms of speech, press, petition and assembly guaranteed by the First Amendment must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish.” And it can be found in more- recent decisions, like Rosenberger v. University of Virginia (1995), where the court saw student freedom of expression in a campus “marketplace of ideas” as the foundation of higher education itself:

In ancient Athens, and, as Europe entered into a new period of intellectual awakening, in places like Bologna, Oxford, and Paris, universities began as voluntary and spontaneous assemblages or concourses for students to speak and to write and to learn. … For the University, by regulation, to cast disapproval on particular viewpoints of its students risks the suppression of free speech and creative inquiry in one of the vital centers for the nation’s intellectual life, its college and university campuses.

What’s striking, then, about the Papish case is not the majority opinion, but the dissents by Chief Justice Warren Burger and Justice William Rehnquist. Chief Justice Burger summarized a core element of their argument when he wrote, “In theory, at least, a university is not merely an arena for the discussion of ideas by students and faculty; it is also an institution where individuals learn to express themselves in acceptable, civil terms.” Burger’s perspective – that student freedom of expression on college campuses could be circumscribed by pedagogical concerns both in and outside the classroom – would have provided a legal foundation for campus speech codes, had it ever attracted a majority on the court.

Yet out of many law-review articles promoting the campus speech-code movement in the 1980s, I found none that commended the Burger or Rehnquist dissents in Papish. That’s a remarkable omission. Why not highlight a key dissent from the chief justice that advances your position? The only conceivable answer is that supporters of speech codes on the left were reluctant to concede that such codes were also attractive to the ideological right. In those heady, self-righteous days, no one wanted to acknowledge that giving universities broadly defined powers to censor uncivil speech might be used in ways most speech-code advocates wouldn’t like.

Unfortunately, the fundamental agreement between the right and left on the need to promote campus civility was primarily a consensus about methodology. Both depended on punishment rather than education, suasion, and peer influence. The end result went beyond a series of failed speech codes at some of the nation’s leading universities – all eventually struck down by the courts. It ultimately promoted a culture of silence on issues of race and constituted a lost opportunity to teach students how to confront “bad” expression with expression that was better reasoned and better expressed.

Perhaps the best post-mortem of a failed speech code involved the University of Wisconsin code, struck down by a federal court in 1991. In a 1993 Los Angeles Times Magazine article, the Pulitzer-Prize-winning writer Barry Siegel reported that Roger Howard – the associate dean of students at the Madison campus, an initial supporter of the code, and an administrator charged with its enforcement – eventually concluded that “it’s better policy not to have a code. … The human instinct – or the American instinct – for censorship is just too strong.” Howard was particularly concerned that the code promoted a “McCarthyesque venue. … I’ve heard of students saying ‘Shhh – don’t say anything about affirmative action, the university will punish you.’ … I think there was a chilling effect.”

Siegel’s 1993 article on the demise of the UW code, however, also helps explain why speech codes continue to endure on other campuses more than a decade later: “Beyond the desired diversity of color and gender,” he wrote, “surely there was also an enforced orthodoxy of thought and expression. … [A]mid all this talk of the code’s value as symbol, it was a bit unclear just whom the symbol was meant to protect – minority students from harassment by racists or UW leadership from denunciation by minorities.” Speech codes, in other words, may serve the primary purpose of diverting attention from more substantive issues of inclusion and civility, allowing administrators to focus on cosmetic approaches unlikely to produce any lasting change in campus cultures.

In 2003, following a lawsuit by a free-speech advocacy group, a federal judge issued an injunction against Shippensburg University that barred it from enforcing parts of its speech code. The university abandoned its code in 2004, even though the case’s plaintiffs had not been punished for violating it. The court observed, “While we recognize that citing students under the suspect provisions has not been a common practice, in the hands of another administration these provisions could certainly be used to truncate debate and free expression by students.” Indeed, one of the student plaintiffs in the case asserted that she “was reluctant to advance certain controversial theories or ideas regarding any number of political or social issues because … she feared that discussion of such theories might be sanctionable.”

The Shippensburg case highlights that even dormant speech codes continue to depend upon explicit or implicit threats of punishment. The only beneficiaries of that approach have been a new cohort of campus conservative activists, who thrive on the excitement and attention of being portrayed as First Amendment martyrs.

College administrators simply haven’t given sufficient thought to creative alternatives, even though recurring speech-code controversies have created opportunities to promote the holy grail of undergraduate education: enhanced skills in listening, reasoning, gathering and weighing evidence, considering the aims and feelings of others, and understanding core components of citizenship, like the responsibility to protect and promote constitutional freedoms.

Administrators looking for new approaches have several good examples to emulate, most arising out of an earlier era of speech-code development. The columnist Nat Hentoff described one possibility in a 1991 Washington Post article about the response of four black women at Arizona State University to a racially offensive flyer posted on a residence-hall door. Instead of seeking to invoke ASU’s speech code, the women told the occupants why they objected to the flyer (which was promptly taken down). Then, with the support of ASU administrators, they helped organize a series of campus forums and discussions, as well as a residence-hall program on African-American history. Lively correspondence continued in the campus newspaper, culminating in a letter to the editor (“names withheld upon request”) that read: “We would like to extend our sincerest and deepest apologies to anyone and everyone who was offended by the tasteless flyer that was displayed on our front door. … We did not realize the hurt that would come from this flyer. We now know that we caused great distress among many different people, and we would like again to apologize.”

Similar outcomes elsewhere aren’t guaranteed. Without proper leadership from college deans and presidents, intensely emotional issues can turn into shouting matches rather than thoughtful dialogue. At a minimum, however, offending students can be challenged to become First Amendment practitioners and active participants in a serious discussion, instead of First Amendment martyrs. And offended students can be encouraged and assisted in employing a broad range of strategies – holding open forums, conducting lawful demonstrations or vigils, or simply issuing invitations to public debates – that will help them acquire skills in challenging rather than censoring expression they don’t like. Some schools have endorsed this approach protecting “the right to think the unthinkable, discuss the unmentionable, and challenge the unchallengeable” in published guidelines, like the Yale University Policy on Freedom of Expression (written by the late C. Vann Woodward, one of America’s most distinguished historians).

In his 1929 essay “The Aims of Education,” Alfred North Whitehead wrote: “Every intellectual revolution which has ever stirred humanity into greatness has been a passionate protest against inert ideas. Then, alas, with pathetic ignorance of human psychology, it has proceeded by some educational scheme to bind humanity afresh with inert ideas of its own fashioning.” A better summary of the speech-code phenomenon would be hard to find. The ideals that gave life to the civil-rights movement arose out of an intense clash of ideologies and convictions. A whole new vocabulary of justice was created in the process. That vocabulary can’t be frozen in amber. Each generation should be encouraged to develop the skills to contribute to it. Doing so requires an atmosphere of freedom – an atmosphere in which fundamental values are questioned, tested, reformulated, and revitalized, not turned into stale dogma.





Gary Pavela

Gary Pavela teaches in the Honors Program at the University of Maryland and writes law and policy newsletters to which over 1,000 colleges and universities subscribe. In 2006 he was designated the University of Maryland’s “Outstanding Faculty Educator” by the Maryland Parents’ Association. He has taught at the Federal Judicial Center in Washington, D.C. (the training arm of the United States Courts), is a Fellow of the National Association of College and University Attorneys, and serves on the Board of the Kenan Ethics Institute at Duke University. He spoke to Virginia Tech faculty and staff at the July 2007 “Symposium for Managing At-risk Students” (sponsored by the U.S. Department of Education) and was a consultant to the Governor's Task Force on Campus Safety for the state of Wisconsin. Gary Pavela has appeared on the CNN, FOX, PBS, and CNBC networks. His work has been cited in the New York Times, the Washington Post, the Wall Street Journal, the Chronicle of Higher Education, the National Law Journal, Business Week, Time, Newsweek, and U.S. and News and World Report, among many others. For the Chronicle of Higher Education interview about Gary Pavela’s 2006 book, Questions and Answers on College Student Suicide: A Law and Policy Perspective, go to: <>. [email protected]