The UMich Speech Code: Minority Protection or Free Speech Violation?

 

The Policy on Discrimination and Discriminatory Harassment of Students in the University Environment (hereafter referred to as “the Policy”), adopted at the University of Michigan in 1988, was a speech code that ostensibly protected the student body from discrimination. The code was similar to the type of legislation many progressive college students have been lobbying for since the rise of the alt-right on campuses across the nation after the 2016 election. Since similar policies have been proposed and seriously considered by many current university administrations, an analysis of the Policy and its effects on minority students could prove to be useful.

An attempt to curb a rising tide of racially-motivated harassment on campus, the speech code established sanctions for any physical or verbal behavior, including sexual advances and requests for sexual favors, that stigmatized or victimized a person or group and threatened (expressly or implicitly) their participation in anything University-affiliated, employment, or personal safety based on “race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status”.¹ The Policy applied sanctions based on a three-tiered system: in educational areas, such as classroom, libraries, and laboratories, all discriminatory speech was prohibited.¹ In public spaces, however, only physical violence or property destruction was punished, and university-sponsored publications (like The Michigan Daily) were not subject to regulation under the Policy.¹

The Policy was a result of a three-year period that saw a vast increase in the number of racist incidents on the university campus.¹ In the first two months of 1987, for example, fliers declaring an “open season” on black people were distributed, racist jokes were broadcast on an on-campus radio station, and a Ku Klux Klan uniform was displayed in a dormitory window.¹ At a public hearing that year, every speaker criticized the University, alleging that the protections for minority students it had in place were insufficient and that it was largely ignoring the problems students faced.¹ Shortly after, the President of the University, Harold Shapiro, resigned to become President of Princeton University.¹

While Shapiro had been lauded for his economic work at the University of Michigan, his work in diversity and inclusion attracted far fewer accolades. When Shapiro took office in 1980, black enrollment was at a low 5.5%; when he left seven years later, it was at 5.4%.2 Faculty diversity ratios also stayed largely the same, resulting in a rather large wave of discontentment among students that came to a head during a protest against his leadership in the spring of 1987.²

After Shapiro’s resignation, Robben Fleming was appointed acting president. During his previous term from 1968-1978, Fleming was known for being willing to discuss controversial issues. As part of a six-part plan to target racism, he wrote the first draft of the proposal for the Policy, arguing that discriminatory remarks that were seriously inflammatory or offensive could “detract from the necessary educational climate of the campus.”¹ Fleming asked for harassment and discrimination complaints to be directed to the Affirmative Action Office, but the Office did not verify complaints or identify the perpetrator, which both made the quantification of the necessity of the Policy somewhat difficult to authenticate and perhaps suggested that the Policy was more of a symbolic move than an actual attempt to mitigate harassment. While he acknowledged that issues aligning the Policy with the students’ First Amendment right to freedom of speech could arise, Fleming argued that the Policy would show that the university was willing to take action on the pressing issue of racially-motivated discrimination, and that a student who made a racist remark would have been disrupting the educational environment just as a person who shouted “Fire!” in a movie theatre would have been causing chaos.¹

To ensure that the Policy obtained maximum support and legal validity, Fleming had it vetted by an attorney and multiple professors at the University of Michigan law school. Drafts were opened up to suggestions from students, most of which were incorporated into the Policy.¹ When the penultimate draft was proposed at a Regents meeting, there were no vocal opponents. The only concern voiced, in fact, was one regarding the alignment of the Policy with the students’ First Amendment rights.¹ The draft was revised yet again and then brought to the next Regents meeting, where it was unanimously adopted on April 14, 1988.¹

Under the Policy, any university community member could file a complaint, thereby starting the enforcement process. Formal complaints were under the jurisdiction of a Policy Administrator, who would pursue an official investigation. The Administrator could then call a hearing, during which he/she would present the charges against the accused to a panel of four previously selected students and one faculty member. These hearings had courtroom-like proceedings: each side could call and cross-examine witnesses, and the panel would decide on an appropriate punishment. Sanctions ranged from a simple, formal, reprimand to expulsion (though the latter was only to be used in cases of violence, a refusal to comply with an earlier, lesser sanction, or a repeated offense).¹ On the books, the Policy looked to be fine; after all, the words “victimizing” and “stigmatizing” are somewhat subjective, and the Policy allowed for some discretion, as the Policy Administrator had the authority to refuse a complaint if he reasonably determined the speech in question to be protected under the First Amendment.¹

In reality, however, the Policy’s constitutionality (or lack thereof) was far less clear. Sixteen months after its passage, the majority of the Policy was struck down in the case Doe v. University of Michigan. The plaintiff, a biopsychology student who adopted the pseudonym John Doe, argued that the Policy could prevent students in his classes from discussing potentially controversial theories about the biological effects of race and gender.¹ The University’s defense was constructed largely around the argument that Doe did not have the legal standing to challenge the Policy; it argued that the Policy had never been used to sanction classroom discussions, and that Doe did not demonstrate a sufficient threat of enforcement on himself.¹ No part of the University’s defense directly addressed the argument that its Policy, in preventing controversial (but protected) speech in the classroom, violated the First Amendment, which perhaps indicated that University personnel were aware of the constitutional issues surrounding their Policy.

The Court found that the University’s history of enforcement showed that a classroom discussion on bio-psychological theories about race and gender could actually be sanctioned, as a University-issued Guide containing examples of punishable speech included a scenario where “a male student makes remarks in class like ‘Women just aren’t as good in this field as men,’ thus creating a hostile learning atmosphere for female classmates,¹” which was remarkably similar to the types of theories that Doe argued would be espoused in his classes. Ultimately, the Court ruled that the University was allowed to prohibit most physical actions (including harassment and physical abuse), but that the part of the Policy that punished pure speech (i.e. most of it) violated the First Amendment due to overbreadth.¹

The Supreme Court of the United States has historically held that policies punishing speech on the sole basis of offensiveness are overbroad and a violation of the First Amendment, and the University’s broad enforcement pattern seemed to reinforce the idea that offensiveness was the only standard for punishable speech. In an effort to maintain a non-discriminatory method of enforcement, the University did not enforce the Policy selectively at all, which may have actually posed a problem. Contrary to the University’s statement in Court, sanctions were applied three times in a classroom setting.¹ In the first instance, a black student who said that homosexuality was a curable disease and that he was already counselling a few gay people was indicted under the Policy but found not guilty of harassment on the basis of sexual orientation.³ Under the evidence presented, had he been convicted, there was no indication that the Administrator would have intervened to uphold the First Amendment. The Policy was also applied to a business student who read a homophobic limerick in class and a dentistry student who claimed that he had heard from a black friend that a professor was discriminatory towards minority students. In the latter case, the minority professor filed a complaint, arguing that the comment lessened her chance at tenure. In both cases, charges were dropped after the students publicly apologized.³ In each of these cases, the Policy was administered in a serious classroom setting, and there was no sign that the Administrator ever stopped to consider whether the speech in question was protected under the First Amendment.

From examining the way it was enforced, it seems reasonable to conclude that the Policy did more harm than good. In attempting to empower the disempowered, the Policy placed more power in the hands of those who already had it, because those were the people who ultimately determined the scope of “discriminatory” speech. As controversial speech was (and is) not limited to white, cisgender, heterosexual males, this Policy disproportionately affected the very people it was intended to protect: white students charged black students over 20 times with “offensive” speech, including one case where a black student used the phrase “white trash”, and 100% of the cases brought because of racial bias were brought against black students.⁴ Policies like this also seem to have the opposite of the intended effect: rather than promoting an accepting and tolerant environment, they enable and encourage acrimony that is easily spread through accusations of peers. In fact, the Policy seemed to be a way for the University to pretend like it was doing something to address on-campus issues while actually just slapping a proverbial band-aid onto a gaping wound, a fact that did not escape many students. Many students who originally were proponents of on-campus policies like this became less supportive after they were put in effect.⁵ One such student, Victor DeJesus, said that he believed a similar code at the University of Wisconsin was used as an excuse to avoid addressing real problems on campus.⁶ At best, the Policy was a mostly symbolic gesture from the University, signaling its support for minority students; at worst, it used to conceal the University’s reluctance to take tangible and constructive action to better the lives of its minority students and reduce discrimination on campus.

Instead of largely symbolic codes that distract from the real problems on campus, universities would do well to implement a wide range of more practical (and legal) alternatives. The ACLU has suggested that a sort of positive reinforcement is more helpful in establishing an inclusive and non-discriminatory environment on campus.⁷ First, it is crucial—and effective—that all administrators, students, and faculty members are clear about their desire to eliminate bigotry on campus: according to a study done at Smith College, Massachusetts, a student who hears a discriminatory statement and a prompt rebuttal tends to not believe the former statement, particularly if the rebuttal is from someone with authority or in a leadership position.⁵ Universities could also offer classes that educate students on this country’s history of discrimination and the best way to combat contemporary bias, and instructors should revamp their course curricula to include works by minority contributors, which have long been left out. It is also important for the university to put in an effort to attract minorities so that the campus is more diverse, as diversity naturally leads to more inclusive and tolerant mindsets. Providing orientation and counseling programs in which all students get to know each other in a non-academic environment, for example, would allow students to be around and bond with peers from all walks of life, which is the simplest, and perhaps most effective, way for students to become more open-minded and inclusive.⁷

The idea that universities should do more to protect its minority students and foster an inclusive, diverse environment is a good one; however, the currently-popular speech code proposals are strikingly similar to the code implemented at the University of Michigan. An analysis of that Policy shows that codes like this violate the First Amendment, are ineffective at best, and could actually disproportionately harm minority students. While college campuses could undoubtedly be more inclusive, there are far better ways to foster this type of environment than a half-hearted attempt at eliminating discrimination such as this.

Notes

1. United States District Court for the Eastern District of Michigan, Southern Division. No. 89-71683 Doe v. University of Michigan. 22 Sept. 1989
2. “President (University of Michigan) Records: 1967-2014.” n.d. Bentley Historical Library: University of Michigan. 15 September 2017.
3. Marshall, John. The John Marshall Law Review. The John Marshall Law Review, repository.jmls.edu.
4. Strossen, Nadine. “Incitement to Hatred: Should There Be a Limit.” New York Law School, 2000, digitcalcommons.nyls.edu
5. Huscroft, Grant, and Paul Rishworth. “Nadine Strossen.” Litigating Rights: Perspectives from Domestic and International Law, pp. 174–180.
6. “U. Of Wisconsin Repeals Ban on ‘Hate Speech’.” The New York Times, The New York Times, 13 Sept. 1992, http://www.nytimes.com.
7. ACLU, Policy Guide of the American Civil Liberties Union, Policy #72a, Free Speech and Bias on College Campuses 159.