Speech Codes on College Campuses - Literature review Example

Abstract The United States constitution in and of itself does not give any rights to its citizens, it merely guarantees, rights. The first amendment of the constitution guarantees the right of free speech and expression. It is then by no small wonder, that American institutions of higher learning purport that their campuses are practitioners of freedom of speech, and open expression. However, it does not take the average student long before he/she realizes that their constitutional guarantees are suppressed by limitations, when they are translated by campus administrators and often times professors. The reasons why these limitations on free speech and expression on college campuses persist may be due to the ideological stance which has been sanctioned by the board of trustees, or perhaps it is a bottom up phenomena, which emanates within a group or groups within the student body itself. While the origin of the dilemma is of some consequence, it is the result of the persistent perpetuation which precludes students from addressing certain subjects in the classroom that is of paramount concern. Most liberal arts colleges tout themselves as bastions of learning and understanding, which have structured their curriculums to prepare their student bodies to fashion a world view. According to Pascarella and Terrenzini (1991), the mission of colleges and universities is both educational and social, and this extends far beyond the cognitive and intellectual development of its students. The scope of their mission has labeled education to be inclusive of a heightened level of individual realization, an expansion of individual, cultural, cerebal enhancement, and social enhancement and interest; freedom from pontification, narrowmindeness, and prejudice. It is incumbent upon them to foster moral and decent standards, which will empower the graduate to become a responsible and productive member of society.(p.162). The question arises as to how is this at all possible when students are presented with vague and short sighted speech codes, which do not afford them the opportunity for freedom of expression. The possible answer is that the courts will invariably be compelled to stipulate their vision of what they perceive the mission of colleges and universities to be, and this vision must articulate the purpose in the classroom and beyond. Whenever called upon to offer its guidance, the courts have articulated the right of college students to enjoy an unfettered approach to contribute to the free exchange of ideas. In spite of the stance of the courts on this matter, a number of colleges and universities have gone against the grain and adverse to the wishes of students, by restricting certain types of speech and topics which students can engage, without being subject to administrative sanctions or explusion.It is no small wonder that some of the restrictions which have been forced upon some student bodies on campus, would not hold water in civil society.(FIRE, 2009). The Academy has been alerted that any rule, regulation which punishes a student, those which restrict protected speech, runs counter to the first amendment.( French, Lukianoff & Harvey,2005) Ostensibly, there is to be continued interaction between students, and there is a necessity for the on-going presence of dialogue. This dialogue is not always participated in to merely determine who is right or who is wrong, it is often times initiated to share, it is through the sharing that one discovers that it is not always the objective to find a solution, but that sometimes it is essential so that they might reach a consensus, and agree to disagree. Most importantly, it is needed to further advance the development of the student. Free Expression Restrictions on Campus It was more than twenty years ago when speech restrictions begin to appear on college campuses across the country. Explanations as to why they first appeared have varied as much as the number of commentators who have offered their opinions on the proliferation. While no one is quite sure where or why this restrictive mode of thinking manifested, one does know that it did not take long for the copy cats to appear. Over a five year period, beginning in 1986, more than 137 institutions of higher learning in America, adopted restrictive speech codes.( Gould, 1999). It is suggested by some, that the incidence of diversity on college campuses, from a monoracial environment, to an all inclusive cultural, racial, religious and ethnic melting pot, compelled more than two hundred campuses in 1992 to adopt speech codes which made it restrictive to offer any racist or demeaning language.( Glasser, 1992). Circumventing Violence as the premise Many of the colleges who were the forerunners in adapting speech codes, offered the explaination that these speech restrictions were being placed on their students in their well meaning attempt to diffuse potential occurrences of racial and other intolerable acts, which had taken place on some campuses during the period of the 1980’s up to the 1990’s. The codes which were adopted by the various administrators and faculty were justified as being necessary , as they provided additional cover for minorities and women. Because there began to be an increase in racial, and sexual minorities in the campus environment, those students who were in favor of a monoracial, single hetereosexual environment, began to exhibit resentment towards those who were not of the same likeness and status as they were.(Johnson, 2000). At one point in the 1990’s the incidence of ethnoviolence was so pervasive, until more than seventy one per cent of the colleges participating in a survey, reported at least one incident. According to Moore (1993), the implementation of codes became a necessary evil to guard against prejudicial acts and statements, and to circumvent violence. Stone walling According to Murray (1997), that while the college and university administrators were swift to create the speech restrictions which decried any acts of violence or disrespect against any of its student body, this swift action was not done totally in earnest. The administrators merely sought to appease those critics who might advance the thought of them being insensitive.(Gould, 1999). Politically Correct This is probably one of the most damming aspects of the speech restriction components because it pushed those administrators whose responsibility it was to formulate and implement the restrictions. This aspect forced them to stay ahead of the trend, and to serve as the insightful anticipators of what might be on the minds of the students, it prompted them to try and stay one step ahead in an effort to shape the “proper” university viewpoint.(Murray, 1997). The guidance in shaping the restrictive speech codes in this instance, was that everyone had an extremely low tolerance, and regardless of the intentions of the person who is speaking, his remarks might be taken as offensive by someone. The parameters eventually became so narrow, until the expected articulated views are narrowed down to only those which are widely held.(Craddock,1995). The presence of speech codes represent broad restrictions being placed on college students. It stands to reason that at some point, the thought of safeguarding the rights and well being of a specific type and class of student might have demanded some type of consideration. However, the force feeding of speech restrictions, which in public universities, are violations of the students constitutional guarantees, while in the private university, it is a violation of the student contract, which they have with the institution, via student handbooks, and campus brochures. It is without question that these codes have had a harmful affect, and partly because they have been hastily done , without much long term consideration were poorly drafted.(Murray, 1997). Of course, one can speak volumes about the harmful affect the codes have had on free speech. Implicit and Explicit Difficulty The fact that speech codes are vague and possess such a broad premise, the student does not usually have an idea of the types of speech which the university deems permissible, and those which are not allowed. This schism stunts student development, as the student in most instances will remain silent or reticent, so as to avoid being punished for a violation.(Strossen, 1990). It is clear that this precludes a wide range of discussion and debate from occurring, and not only does it detract from the university’s proclaimed mission of being a repository of ideas, this aspect has a chilling affect on vector #1(Chickering & Reisser,1993) as it inhibits the students ability to develop competence. According to Breton and Largent (1971), the thrust of the current culture on campus works against the individual student acquiring levels of self knowledge, therefore sets the student up to not trust their own feelings, and inner experiences,but to be dependant upon an authority, which leads to a personal desensitization, which puts the individual into a position of non-awareness and renounciation of self in favor of reliance and dependence upon the authority. This is particularly damming because sustained conformity to this paradigm, leads to the individuals total acceptance of the non-generation of individual ideas resulting in a minmumzation of creative development. This paradigm does not foster any type of creative or innovative dialogue, but it does create a gap between the authority and the subject.(p.4) In a longitudinal study conducted by Martin (2000), he offered proof that college experiences can assist in developing competence. These findings have long been advanced by a number of commentators, Evans,Forney, & Guido-Dibrito,(1998), Chickering & Reisser,(1993), offered that there must be a mixture of institutional supports to enable the students journey through the seven vectors.The degree in which the student is apt to realize development in any one of the vectors is dependant upon the quantity and quality of the institutional supports provided in the environment. Encroachment on classroom discussion of legitimate academic ideas Almost immediately after the introduction of speech codes more than twenty years ago, both the legitimacy and legality of their implementation was broached in Doe v. University of Michigan (1989), when the University formulated its vague policy concerning discrimination.The policy was challenged by a graduate student to be chilling, and precluded the ability to openly discuss theories. He claimed the policy made it difficult for students to engage in free and open classroom discussion.(his premise was, as a biopsychology major, he was reluctant to broach specific areas of his specialization, due to the underlying race and sex perceptions)The federal district court sided with the plaintiff and stated that the code was both vague and broad, and students were left out on a limb in deciding whether an Issue would later be deemed sanctionable. Any code which reflects levels of vagueness is inherently unconstitutional. (Craddock,1995).While this challenge represented a quest to remove those restrictions which were being placed on vector #1 by the university, it also represented an encroachment upon vector #4 Developing Mature Interpersonal Relationships,(Chickering & Reisser,1993), which places undue and untenable restrictions on an individuals efforts to engage in open, honest and unbiased communication. Defending the right not be offended The rationale for making certain types of discussion difficult in the classroom is upheld by university and college administrators on the premise that it is the right of the vulnerable not to be the subject or target of words and situations which they might deem to be offensive. However, which seeks to expose, while assisting the student to achieve tolerance towards a broad spectrum of knowledge and ideas, and as it is with life outside the campus, some if not many of these encounters and ideas will be disagreed upon, while others just might be a tad offensive.The point here is that when there are items which have been classified as difficult, and as such deemed to be restricted, the difficult discussions not allowed, circumvents the development of the student.(Moore,1993). In classifying certain types of discussion as difficult, the university stifles the students ability to engage critical thought. The promotion of a critical education, should endeavor to encourage the presence of all ideas.The mere suppression of critical thought among students, insulates them with a false sense of being, a dependence which will be severed when they leave the hallowed walls of the college campus. At the end of the day, the effort and attempt not to offend, essentially deprives the student of valuable life lessons. In Chickering and Reisser (1993), they depict their vectors as salient sequential segues for a sojourn towards individualism – that this is the realization and smoothing out of the individualism of a person, and the establishment of an association with peers and organizations, the association is coupled with an overall identification of a world view. While students will always have variances in their individual thought processes, abilities and levels in which they absorb and retain information, and the manner and style which they adopt to make decisions. These differences will ultimately affect the manner in which the sojourn develops for each student, and there is an influential commonality shared by all college students, regardless of their individual methods. The themes which continue to appear throughout their experiences are their quest for competence, and a heightened awareness of who they actually are, placing a premium on control and the ability to remain cognitively and cerebrally abreast, the facility to synchronize heightened personal relationships with liberation, while discovering one’s advocacy or life’s work, one develops a deeper understanding and appreciation for belief systems, and being accountable. (Chickering and Reisser, 1993). In the third vector, the college student commences to journey from being autonomous towards a quest for being more reliant upon themselves, it is at this juncture where they seek to initiate the severing of the absolute reliance upon their former support channels. Kohlberg has engaged in research where he identified six stages of moral reasoning, which he subsequently categorized into several levels. The primary level has to do with the moral judgments of an individual which are captured in one’s minds eye. Inherent of this level, which has been characterized as stage one, the individual aligns themselves to a theory of justice and fairness, recognizing that their actions will in all instances have consequences. In the second stage, there is an adherence towards pragmatism, recognizing that no man is an island, as things and situations must be shared with and by others, one is inclined to engage in quid pro quo. These stages are labeled by Kohlberg (1969),as the preconventional level. At the second level of Kohlberg’s theory, he addresses the external co-habitation of one’s existence, as he stresses the importance of maintaining civility, as a prerequisite for upholding the norms of society. In stage three of his theory, he offers the reality check, that we are all bound by expectations, and that the act and level of what is expected of each of us, is correlated with the association of our individual being. In the fourth stage, the level of expectations are elevated to dealing with those positive and negative acts in the society-at-large. These are the codified actions which defines the responsibility of one’s humanity, as it relates to social responsibility. Then there is the postconventional level, wherein an individual bases their reasoning on the existing codes and practices.Kohlberg’s research has rebuked the traditional idea, that the basis to moral behavior is contained in virtues and vices. Moreover, that if one appropriately applies specific virtues, then moral character, and behavior will ultimately follow. It is the contention of Kohlberg, that a viable approach for bringing about moral behavior is placing an emphasis on the stages of moral development. Personal Perspective The existence of speech codes on college campuses have the overall affect of suppressing viewpoints which campus administrators have deemed to be disfavored. The problem which this presents to student development, is that these codes serve as the driving force in discouraging and eliminating a range of ideas and viewpoints from the discussion on campus. The codes place the student in a precarious position because the codes in most instances have not been thoroughly thought out or constructed. In a number of court rulings the codes which have been visited by the court have been deemed to be vague and too broad. This has led to students not being aware in many instances, as to what is exactly covered under the restrictions, and what is permissible by the university. In defence of their speech codes, some universities have advanced the argument that their codes are designed to cover unprotected speech. The perpetuation of speech codes are fashioned around the premise that students reserve the right not to be offended by their fellow students. This attitude, largely put forth by the administrators, send a signal to the students that they are not expected to tolerate any speech or expressions which may differ from those which they personally hold, or any expression or speech which makes them uncomfortable. If there is any lesson which college students should gain or bring away from this experience, is that which comprehensively addresses the multiple issues which have a bearing on diversity. The experience should be one of enrichment, based on solid theories and actual experiences which prepare them for the world beyond college. In preparing or shaping their world view, if they are not permitted to broach certain subjects, then they are likely to develop a distorted view of the world. Human dynamics often present some complex sets of circumstances, and if the student is guided and prodded to position themselves to view these dynamics through rose colored glasses during their college experience, it is likely that their ability to adapt will be difficult. The institutions themselves are obviously not aware of how severely they are placing limitations upon themselves in serving as a market place of ideas, and empowering their students with the best possible education. An education which will be beneficial in the classroom, as well as producing responsible and productive individuals who are the gate keepers and innovators of the future. Administrators, who are proponents of speech codes, take the position that the codes are a necessary tool to prevent harassment. Few, if any will argue with the undesirable measure of anyone being harassed. On the same note, only a few can reasonably offer, that speech codes are the panacea to either the avoidance or elimination of harassment on campus. The problem which is encountered with the presence of university based speech codes which involve protected speech which is deemed difficult in the classroom, are in fact unconstitutional codes. The United States Supreme court takes the position that in order for one student to qualify as subjecting another to harassment that the act or actions of the offending party must be so pervasive, until it denies the victim or targeted group, of an educational opportunity or benefit. In spite of the courts definition and position on harassment, many universities continue to fashion vague and unconstitutionally oppressive codes.It is the position of this author, based on the supreme courts definition of harassment, and on the theories of those commentators who suggest that a college experience should be one which assures the student will achieve various levels of development. That these stages of development are contributors to the personal and educational well being of the individual, but can only be actualized if the educational environment presents the proper mixture. Works Cited Breton, D. & Largent, C. (1996). The paradigm conspiracy: How our systems of government, church, school, and culture violate our human potential.Center City, MN: Hazelden. Chickering, A.W., & Reisser, L. (1993). Education and identity (2nd ed.). San Francisco: Jossey-Bass. Craddock, JM., (1995) Words That Injure, Laws That Silence: Campus Hate Speech Codes and the Threat to American Education, 22 Fla. St. U.L. Rev. 1047 (1995 David A. French, DA., Lukianoff, G., & Silverglate,HA., (2005) Foundation for Individual Rights in Education, FIRE's Guide to Free Speech on Campus 130 (2005). Doe v. University of Michigan, Evans,NJ.,Forney,DS., & Guido-Dibrito,F.,(1998),Student Development in College: Theory, Research and Practice.San Francisco, Jossey-Bass Foubert, JD., Nixon,ML., Sisson,SV., & Barnes, C., (2005) Exploring Gender Differences and Implications for Refining the Theory,September/October 2005 Vol. 46 No. 5 461 Foundation for Individual Rights in Education (FIRE), (2009)Spotlight on Speech Codes 2009: The State of Free Speech on Our Nation's Campuses 9 (2008), Retrieved on line on November 2,2009 , from http://www.thefire.org/Fire_speech_codes_report_2009.pdf Gould, J., (1999) The Triumph of Hate Speech Regulation: Why Gender Wins But Race Loses in America, 6 Mich. J. Gender & L. 153, 158 (1999). Johnson,CB.,(2000), Stopping Hate Without Stifling Speech: Re-Examining the Merits of Hate Speech Codes on University Campuses, 27 Fordham Urb. L.J. 1821, 1823 (2000). Martin, L. (2000). The relationship of college experiences to psychosocial outcomes in students. Journal of College Student Development, 41, 294-302. Mitchell, CM.,(1992) The Political Correctness Doctrine: Redefining Speech on College Campuses, 13 Whittier L. Rev. 805, 818 (1992). Moore, MA., (1993) Free Speech on College Campuses: Protecting the First Amendment in the Marketplace of Ideas, 96 W. Va. L. Rev. 511, 514-16 (1993); Murray, SD., (1997) The Demise of Campus Speech Codes, 24 W. St. U.L. Rev. 247, 250 (1997). Pascarella, E.T., & Terenzini, P.T. (1991). How college affects students:Findings and insights from twenty years of research. San Francisco: Jossey-Bass. Strossen,N.,(1990) Regulating Racist Speech on Campus: A Modest Proposal, 1990 Duke L.J. 484, 521. Read More