The objective at many American universities of ensuring that minority students are comfortable has the potential to intersect the universities’ mission to create and disseminate knowledge and to defend academic freedom. No one disputes that comfortable in terms of student amenities like housing and food service is a worthy objective, but the concept of comfort with respect to the intellectual mission of a university may create risk to the mission. It is overbroad. Put another way, to what degree would significant intellectual or emotional discomfort created by provocative speech mean that the university has failed to achieve its objective that all minority students are comfortable? Should they have some formal remedy against those who create the discomfort?
A brief history highlights the issue. During the 19th century, higher education in the United States shifted from essentially religious and moral training to a much broader intellectual inquiry that presupposes a progressive conception of knowledge. Academics came to understand that it is the possibility of falsifying every knowledge claim in the liberal arts that is the mechanism for advancing knowledge. The essential requirement for this progressive conception of knowledge within the university is free discourse among professors and students within the competency and ethical constraints of a discipline. Coercion will thwart the possibility of both falsifying current knowledge claims and improving knowledge.
Free intellectual discourse in the university community requires the virtue of civility, in the sense of respect for the rights and dignity of others in the discourse that are equal to one’s own, and a mutual willingness to defend those rights. Each participant is to accord others the dignity appropriate to a bearer of equal rights. The university community will then be one where competent speakers can disagree, see the other point of view, reconsider, and honor disagreement. There is inherent in this process a substantial amount of discomfort. Experiencing rigorous public criticism of one’s ideas is, for nearly all persons, painful; yet the university’s mission requires each of us to learn how to deal with this discomfort.
In the university community, the impulse to stamp out offending or insensitive opinion is an impulse to destroy knowledge itself. Jonathon Rauch, in “Kindly Inquisitors” (1993), observes, “In the pursuit of knowledge, many people will be hurt, and this is a reality which no amount of wishing or regulating can ever change. It is not good to offend people, but it is necessary. A no-offense society is a no-knowledge society.”
Historically, the major threat to academic freedom has been from political, economic, religious, ethnic or other groups who wish to prevent the pain and anguish that results when their beliefs are subjected to checking and criticism. Many in the university community seem oblivious to the fact that, since the emergence of the modern university after the Civil War, higher education in the United States has experienced episodic waves of zealotry that threaten academic freedom. Freedom of academic thought and speech has been assaulted by the religious fundamentalism of trustees and administrators in the late 19th century, the unfettered capitalism of trustees of the turn of the 20th century, super-patriotism in World War I, anti-communism prior to World War II, McCarthyism in the early 1950s, student activism in the mid to late 1960s, and the fundamentalism of the radical academic left in the 1990s. In each wave, zealots label disagreement as heresy, demonstrating the moral turpitude of the heretic (bigotry in the current wave), and justifying a variety of coercive tactics to harass and to eliminate heretical thought and speech. A favored tactic has been to subject alleged heretics to investigation and tribunal.
During McCarthyism, the use of repeated unsupported accusations of moral turpitude, together with an institutionalized apparatus for investigators and tribunals, were the most successful coercive strategy, not the termination of employment. The zealots believed that the secretive nature of communist activities and conspiracies meant that communist subversive intentions would rarely be evident in overt speech or conduct, but rather must be inferred from patterns of association. In addition, accusation based on suspicion alone seemed justified in fighting secretive subversive intention and activity. An institutionalized apparatus of investigation and tribunal was also necessary to ferret out these secretive patterns of associations, intentions, and activities.
Richard Hofstadter and Walker Metzger, in “The Development of Academic Freedom in the United States” (1955), observed that this apparatus of investigation “makes, or threatens to make, investigation — by trustees, by state legislative committees, by filiopietistic groups-a built-in characteristic of academic life, an organ of administration, interminable because it is non-specific, incalculable in effect because it rarely relates to professional behavior.”
This strategy of repeated unsupported accusations of moral turpitude with an institutionalized apparatus for investigations and tribunals is replicated in the current fundamentalism from the radical academic left. The mission of the fundamentalist here is to expose the hidden structures of oppression in the culture. It is a small and natural step for the fundamentalist to expose those with hidden motives of oppression and bigotry and the hidden conspiracies supporting the structures of oppression. Accusation based on feelings alone is justified in fighting the hidden oppressors. An institutionalized structure
of zealous prosecutors is necessary to root out hidden motives of bigotry. Under vague standards, the prosecutors can investigate speech, conduct, and associations from which hidden motives of bigotry and oppression can be inferred. Thus, investigation once again becomes a built-in characteristic of academic life, inflicting incalculable harm because it rarely relates to professional competence.
The American Association of University Professors’ 1994 statement, “On Freedom of Expression and Campus Speech Codes,” acknowledges: (1) that colleges and universities are communities, often of a residential character; (2) that the campus climate can profoundly affect an institution’s efforts at diversity, and (3) that institutions should foster an atmosphere that is respectful of and welcoming to all persons. However the AAUP concludes that, ” [R]ules that ban or punish speech cannot be justified. An institution of higher learning fails to fulfill its mission if it asserts the power to proscribe ideas –
and racial or ethnic slurs, sexist epithets, or homophobic insults almost always express ideas, however repugnant. Indeed, by proscribing any ideas a university sets an example that profoundly deserves its academic mission.”
In seeking to make minorities more comfortable, universities should steer clear of either rules that punish speech or institutionalized structures of prosecutors with the power to investigate speech. The university can and should prohibit conduct such as defacing property, physical intimidation or harassment or the disruption of campus activities. Most critically, rather than sanctions, the university should rely on education about the virtue of civility, in the sense of respect for the rights and dignity of others in the discourse that are equal to one’s own, and a mutual willingness to defend those rights.