Original Article: http://dartreview.com/archives/1998/11/10/free_speech_and_colleges_an_interview_with_paul_mcmasters.php
Tuesday, November 10, 1998
Editor's Note: Paul McMasters is First Amendment Ombudsman at The Freedom Forum, a nationally prominent liberal think-tank that specializes in civil liberties issues.
The Dartmouth Review: We've got a bit of a problem at Dartmouth at the moment. There was a ruckus raised after a fraternity threw a party with a 'ghetto' theme. There's been some consequent advocacy of limiting free speech, of punishing individual students for their involvement in sponsoring the party, and some talk of developing a speech code. How does this series of events fit with national trends?
Paul McMasters: It really surprises me that Dartmouth would consider instituting a speech code, because the national trend at Colleges across the nation has been to retract speech codes. Three years ago, Penn had that Water Buffalo incident where a lot of people argued that its speech code was in direct violation of first amendment rights. Penn then decided to cancel its speech code, and since then, that seems to have been the national trend.
TDR: Would a speech code at Dartmouth be legally defensible?
McMasters: Yes. Public universities, of course, are subject to freedom of speech in the same way that any governmental or public institution is. They are required to protect freedom of speech and freedom of association and all the other constitutional freedoms guaranteed by federal and local laws, and the courts have upheld that requirement.
Private colleges like Dartmouth, though, are a different matter entirely. They are obviously not governmental organs, and so a different standard applies to them. Private colleges can, unfortunately, pretty much do as they please — they can institute a speech code, they can suspend students for things we might think arbitrary. The argument is that enhancing students' individual rights at this point might contradict the College's set of rights.
TDR: Have the courts universally supported speech codes at private universities?
McMasters: No, although it depends what you mean by 'the courts.' Local courts in California held that Stanford's speech code was unconstitutional. Stanford is a private college, so that's a precedent. Courts in Wisconsin and Michigan have also struck down speech codes at the state universities there, and those are important decisions, though obviously those are public universities so there's a difference.
There was also an important case in the Supreme Court, R.A.V. v. St. Paul. R.A.V. was the initials of a student who was suing the school district in St. Paul, Minnesota over a freedom of speech issue involving cross-burning. A lot of us thought that that decision, which favored the student's right to free speech, would turn the tide against speech codes, but it hasn't worked out exactly like we thought.
TDR: So would you say that most court decisions are running against speech codes at private universities?
McMasters: No, I wouldn't say that.
TDR: I thought I read something, related to affirmative action, that argued that private universities would be subject to federal dictates for public universities because they received federal funding, usually for research or financial aid. Is that not applicable here?
McMasters: A lot of us have argued that freedom of speech, with all of its applications, should follow federal money. Private universities would then be as subject to freedom of speech as public universities are. The reasoning is if they accept public money, they should be subject to public laws. Unfortunately, again, the courts haven't agreed with this argument. So there's still this distinction between private universities and public universities, in the laws at least, that is unfortunate for free speech at Dartmouth.
TDR: Now, there's this new bill, which was initially introduced in the House by Bob Livingston and was later attached as an amendment to the House Education Amendments in October, whose purpose is to protect freedom of speech and association on College campuses. Will this have any effect on the contextual, legal climate.
McMasters: Well, for public universities it will. The bill tries to protect students from being punished for their speech or association, in line with constitutional freedoms. It looks like its going to have the intended effect at public colleges, and will probably strengthen fraternities there, and help contradict the impulses towards speech codes and restricting freedom of speech.
TDR: Will it have the same effect at private universities?
McMasters: No, probably not. I don't think there's any specific provision in that amendment that says, definitively, that this bill will be applicable to private universities as well as to public universities because of the research funding issue or any other reason. In the absence of such a specific provision, my assumption is the courts will continue their previous policies, which discriminate very strongly between public universities and private universities. So I doubt very strongly that there will be much change in that. I doubt that this bill will have much effect as far as private colleges are concerned. But of course, it's all up to the courts.
TDR: How did speech codes come about?
McMasters: People think of them as recent, but, interestingly enough, they've been around for about thirty years. They came out of a series of very good impulses, to take steps against racism and politically regressive thought. Essentially, they came out of Paris' left bank politics [the deconstruction of Derrida and so on] and combined with existing trends in law and philosophy departments at American universities. This then combined with progressive ideals, contemporary theories, and feminism.
All of which combined to form Political Correctness. Political Correctness was boosted by the political climate, with women and minorities very rigid and quite arbitrary. This was a very good impulse. It was a very human impulse, a very decent impulse. The problem came when we tried to codify it, tried to make this good impulse into law. Then you had all sorts of problems with free speech, when the speech codes developed, and so on. But again, I think it was a very good impulse, the attempt to codify it was just misguided.
TDR: What accounts for the continuing appeal (if I can call it that) of this sort of rigid orthodoxy?
McMasters: I think it fits very well with the agendas of advocacy groups, inside and outside of the university, that have a real stake in politically correct orthodoxy. They're not going to just let it drift away. But you haven't yet asked me what I think of these speech codes.
TDR: I was coming to that. OK. What do you think of these speech codes? Is this a healthy development?
McMasters: Absolutely not. Speech codes are anathema. Speech codes are the worst form of assault on free speech because they compel and restrict the sorts of speech that are acceptable and the sorts of speech that are not acceptable. This is a direct contradiction to the impulses of free speech. I agree with the initial impulses of political correctness. Hateful and harmful speech is a horrible thing. I just don't think speech codes are the answer.