Earlier this year, University of Chicago adopted a powerful re-commitment to campus free speech, precisely to push back against the prevailing suppression. The statement was drafted by UCs acting Law School dean, Geoff Stone, who has been a free speech scholar and advocate for almost half a century. Yet, Geoff recently said, the level of intolerance for controversial views on college campuses today is much greater than at any time in my memory. And I concur with that.
Specifically, Im referring to the overbroad, unjustified concept of illegal sexual harassment as extending to speech with any sexual content that anyone finds offensive. This distorted concept has recently become entrenched on campus due to pressure from the Department of Educations Office of Civil Rights, the OCR. By threatening to pull federal funds, the OCR has forced schools, even well-endowed schools such as Harvard, to adopt sexual misconduct policies that violate many civil liberties . . . .
To say that we should be protected from any idea is the exact opposite of what the Supreme Court has held as the bedrock of our free speech system. Namely that speech may never be suppressed because anyone had any negative reaction to its ideas even the most vehemently negative reaction by even the vast majority of our fellow citizens. To be sure, speech may be suppressed if, but only if, it poses an imminent danger of concrete injury, for example, an intentional incitement of imminent violence.
However, short of such an extraordinary situation, Justice Brandeis eloquently explains why we must brave the discomforts and other potential downsides that are posed by speech whose ideas we consider evil and even incendiary.
As he said, Fear of serious injury cannot alone justify suppression of free speech. Men feared witches and burned women. The fitting remedy for evil counsels is good ones.
This speech protective philosophy was memorably summed up specifically in the campus context by a revered past university president, Clark Kerr of the University of California. As he said, The University is not engaged in making ideas safe for students. It is engaged in making students safe for ideas.
Notably, in 1984, Harvard President, Derek Bok, quoted Clark Kerrs great line in an eloquent open letter Bok wrote to the Harvard community about various free speech controversies that had recently roiled this campus.
One of the incidents that Bok described was a flyer that a Harvard fraternity had circulated which, to quote him, Referred to women in terms that were lewd, insulting and grossly demeaning. While he stressed that this speech should not be penalized in any iota at all, he also explained that it should be publicly condemned.
Now, Ill explain in a bit more detail the free speech and feminist laws with OCRs sexual harassment concept which Harvard and too many other schools have adopted. Again, the OCR has forced campuses to punish as sexual harassment any unwelcome conduct of a sexual nature. There is no exception for speech. To the contrary, the OCR definition expressly extends to verbal conduct which is a good example of Orwellian newspeak. Or I should say, its a good example of Orwellian new verbal conduct.
In short, campuses are pressured to punish as harassment any expression with any sexual content that anyone subjectively finds offensive, no matter how unreasonably or irrationally. And the OCR explicitly rejected an objective reasonable person standard, stating that expression will be harassing, even if it is not offensive to an objectively reasonable person of the same gender in the same situation.
Universities have, in fact, been punishing students and faculty members for all manner of sexually themed expression, even when it has an important academic purpose. The most egregious, most recent example is the prolonged sexual harassment investigation that Northwestern University conducted against film professor Laura Kipnis earlier this year because of an article she published in the Chronicle of Higher Education, in which, ironically, she criticized the exaggerated, distorted concept of sexual harassment that is prevalent on campus.
For months, the university subjected her to Star Chamber type interrogations pursuing the charge that her essay somehow constituted unlawful harassment.
Id like to cite just a few other examples of campus censorship in the guise of punishing sexual harassment. The Naval War College placed a professor on administrative leave and demanded he apologize because, during a lecture that critically described Machiavellis views about leadership, he paraphrased Machiavellis comments about raping the goddess Fortuna.
Another example: The University of Denver suspended a tenured professor and found him guilty of sexual harassment for teaching about sexual topics in a graduate-level course in the course unit entitled Drugs and Sin in American Life from Masturbation and Prostitution to Alcohol and Drugs.
Next example: A sociology professor at Appalachian State University was suspended because she showed a documentary film that critically examined the adult film industry.
A sociology professor at the University of Colorado was forced to retire early because of a class in her course on deviance in which volunteer student assistants played roles in a scripted skit about prostitution.
A professor of English and film studies at San Bernardino Valley College was punished for requiring his class to write essays defining pornography. Yes, that was just defining it, not even defending it.
And just this summer, Louisiana State University fired a tenured professor of early childhood education who has received multiple teaching awards, because she occasionally used vulgar language and humor about sex when she was teaching about sexuality and also to capture her students attention. And I could go on. You get the idea.
An appropriately limited concept of illegal sexual harassment in the educational context was issued by the Supreme Court in 1999. Not just anything that anyone considers unwelcome, subjectively as the OCR would have it, but rather, only unwelcomed conduct that is targeted, discriminatory and Im going to quote so severe, pervasive and objectively offensive, and that so undermines and detracts from the victims educational experience, that the victims are effectively denied equal access to an institutions resources and opportunities.
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