I approach the matter from the point of view of AAUP, to which I have devoted much effort for the past 35 years. A significant part of that effort has been advising faculty members having grievances, and frequently the grievances have related to discrimination and harassment, so that that is a familiar problem for AAUP.
After reading the reports in the University Record about the Michigamua episode, I have concluded that the main issue is one of free speech. (I am aware that some have found the main issue to be the assignment of a meeting room to the society; I find that to be a technical question in need of study, but am sure that the question would be of very little interest if the group using the room were, say, a mathematics club.)
In this case, various customs of Michigamua over the years have conveyed a message of ridicule of customs of another group and we are confronted with the question of how to respond to the distress caused by the customs.
My judgment about the issue is reinforced by an e-mail with Robert ONeil, professor of Constitutional law at the University of Virginia. For many years he chaired AAUPs Committee A on Academic Freedom and Tenure. He was the first speaker in Senate Assemblys series of lectures on Academic and Intellectual Freedom. He is the author of a recent book: Free Speech in the College Community, from which I shall quote.
Two weeks ago I sent him an e-mail, telling of the present issue and reproducing the statement of the faculty group which appeared in the Record. In particular, I stated:
I am finding that the students and faculty are really asking for revival of the speech code, about which you comment extensively in your book.
In his reply, he wrote:
Thanks so much for sharing this issue and the letter with me. Clearly the speech code issue never quite dies, even though it may surface in rather different forms.
I was a member of Senate Assembly in the 1980s when the University was developing its speech code. The discussion was very difficult. Complaints had been made of harassment on account of race and the faculty was strongly motivated to support efforts to counteract it. Eventually the code was adopted by the Regents. I quote from it:
After a thorough review of the issue, The University of Michigan has determined that it needs to intervene in speech when a student intentionally uses racial, ethnocentric or sexual invectives, epithets, slurs or utterances directly to attack or injure another individual rather than express or discuss an idea ideology or philosophy. Such attacks go beyond the boundaries of protected free speech. In those instances, the University must protect the educational environment of the University.
The code had strong penalties, also safeguards against abuses. It reflected painstaking efforts to avoid conflict with Constitutional guarantees of free speech.
If that code were in effect today, it would surely be cited by those who have been criticizing Michigamua and the University would be carefully investigating whether a violation had occurred.
It is my impression that precisely such action is what is being requested by the protestors.
However, the speech code was found to be unconstitutional in 1989 because, despite the efforts to be within the law, it had violated the First Amendment of the Constitution.
And that is our dilemma now. We want to curb actions of one student society which convey discriminatory attitudes to another group of persons. To me, all these actions come under speech, even though the spoken word is only part of what is deemed offensive. The actions certainly do not include direct physical assaults or other nonvocal attempts to create physical discomfort for the offended group.
The problem has been widely discussed and speech codes like the one adopted here have been created at a number of universities. However, like ours, all have been abandoned under actual or threatened court action. Their fate is considered in detail in ONeils book. On page 12 he writes:
The task of definition is inherently and inescapably difficult. Even the best of legal minds have been humbled by a drafting assignment which, in fact, many universities did entrust to their ablest scholars of Constitutional law. Moreover, some institutions seem to have abandoned their quest for certainty in part because key terms such as harassment lacked sufficient consensus or common understanding.
and on page 15:
Thus the guiding principle for virtually all institutions of higher learning is that free speech must be protected, even when the speech for which freedom is sought may be offensive or disruptive or at variance with the campus mission.
The 1995 edition of AAUPs Red Book of policy statements contains one On Freedom of Expression and Campus Speech Codes (pp. 37-38). I quote from it:
In response to verbal assaults and use of hateful language some campuses have felt it necessary to forbid the expression of racist, sexist, homophobic or ethnically demeaning speech, along with conduct banning such expression. Individuals and groups that have been victims of such expression feel an understandable outrage. They claim that the academic progress of minority and majority alike may suffer if fears, tensions, and conflicts spawned by slurs and insults create an environment inimical to learning.
These arguments, grounded in the need to foster an atmosphere respectful of and welcome to all persons, strike a deeply responsive chord in the academy. But, while we can acknowledge both the weight of these concerns and the thoughtfulness of those persuaed of the need for regulation, rules that ban or punish speech based upon its content 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 an ideas, a university sets an example that profoundly disserves its academic mission.
This statement and the book of ONeil go on to consider how an institution can respond to the incidents of harassment if speech codes are ruled out. In particular, the Red Book statement goes on to propose recommended courses of action, which I summarize (I have the whole statement in a computer file and can send it to anyone who requests it.):
· Adopt a range of measures that penalize conduct and behavior, rather than speech, such as rules against defacing property, disruption of campus activities. ONeil (on page 24) mentions threatening phone calls to a minority studentsdormitory room.
· Use education, in particular, through courses, to promote tolerance and discourage offensive conduct.
· The faculty, administration at all levels and the governing board should actively oppose harassment and set examples of tolerant behavior.
From what I know of the Michigamua story, essentially all involved recognize that the ancient customs of that society were offensive to some other groups and that a change in these customs was much to be desired. It is my impression that Michigamua accepts this and that their actions will eliminate the distress caused in the past. In other words, it appears that a form of education has occurred. However, I regret that disruption was used to achieve that education and hope very much that it can be avoided in the future. The best way to discourage it is for all of us to display strong and continual support for the attitudes endorsed in the AAUP statement: no harassment, no discrimination, only tolerance.
The issue about the tension that arises between our desire to create and preserve a comfortable campus climate for all, while still honoring our dedication to academic freedom and Constitutionally-guaranteed freedoms of expression, is certainly a difficult one, but I do not believe that the principles are at all incompatible. I have a point to make about that which I believe requires some examples. I am going to give three.
I understand fully that this discussion today is about some large issues, not directly about the recent incidents surrounding Michigamua, so I wish to point out immediately that although Michigamua is mentioned in the headline of the article that is my first example, my point really has nothing to do with Michigamua, but only with this article.
This example is the main headline article from the March, 2000 edition of The Michigan Every Three Weekly, a free publication of the University Activities Center dedicated to satire that is distributed in racks all over campus. The title is Michigamua Office To Be Converted Into Big Chief Win-Um Casino. In the course of this article, the authors parody both of the standard movie stereotypes of American Indian speech, the pidgin and the poetic. The headline itself illustrates the pidgin version, with Big Chief Win-Um in it, and there are other examples in the article. The poetic is illustrated by this quote attributed to Joe Reilly, a Native American student and spokesperson for the SCC students who were involved in the recent sit-in in the Michigan Union tower: I remember when casinos dotted the land like buffalo. That was before the white man came with his thundersticks, firewater, and devious autistic-brother-card-counting schemes. Big Win-Um hearkens back to a time when Native Americans were a happy-go-lucky folk.
The article also quotes fictitious people with such made-up Indian names as Maureen Does-Laundry-on-Tuesdays and David Drinks-Snapple-Constantly. Members of our Native American campus community who might have descriptive honorable traditional names, or relatives with such names, would not miss the point that fun is being poked at those name patterns.
The second example is briefer, a headline from a column on the Michigan Daily editorial page of April 11: There are worse things than Apaches. As you might expect, the Apache members of our campus community would completely agree! If it is not clear why the headline is offensive, it can sometimes help in situations like this to say the title out loud with Apaches replaced by other traditionally oppressed ethnic or religious groups.
When the writers of the first piece were approached about their use of stereotyped speech and names, the response was that this is only satire, and in particular the type of speech put into Mr. Reillys mouth is so stereotypical that it is implausible that he would ever really speak that way; therefore, people should not take offense. Is this what we are teaching our students, that the cruder the stereotype, the more acceptable?
Members of our Native American community wrote to the author of the April 11 column objecting to the headline (and some other things in the column). Though I do not have the response, I understand that it was in part that this is only a line from an old Western, and that anyone having problems with it should take it up with the director. Is this what we are teaching our students, that it is all right to say such things as long as someone else said them first?
My point is not just that such things happen. It is more that when such things do happen, silence from the rest of the greater campus community is implicit affirmation of the value of the speech, and that, even more than the original speech, is what helps create an atmosphere that the students who are the targets of the speech will interpret as hostile.
One major danger of our not responding is that silence gives people permission to escalate. How far could that go? How about a cartoon that trades on the firewater stereotype and tosses in some additional cultural offensiveness by showing a bunch of fun-loving fraternity guys on a road trip with Lewis and Clark through the Dakotas trading alcohol to Lakota (Sioux) Indians, my own people, for buffalo-hide condoms?
Unfortunately, that was my third example, since I did not make it up. I only wish I had. There are Native American students still on campus who can remember when the Daily ran that cartoon some years ago, in its University X series.
Members of our community did contact the editors about this, and about previous cartoons with Native American stereotypes by this same cartoonist that had escalated to this point. We received the usual response: a lecture about freedom of the press.
Of course, such a response misses the point, since the right to print such things does not imply the obligation to do so. Even if an editorial staff is uncomfortable with what they might see as internal censorship of a staff cartoonists work, there is nothing preventing them from running a notice beside such an effort saying the opinions and attitudes expressed in this cartoon are those of the cartoonist, and are not endorsed by the editorial staff.
It would help the comfort level of many groups on this campus if we, the faculty and administrators of this great university, could do precisely the same thing. Because of the principle of academic freedom and Constitutionally guaranteed rights of expression, we cannot, and should not, prohibit people from saying and writing such things as I have mentioned. However, if we would also exercise our own freedom to respond, by saying individually and, where appropriate, as a faculty and institutionally, that the opinions and attitudes you are hearing from this individual or group are not generally shared by the rest of us, then the students or others targeted by those opinions and attitudes will be far more likely to be able to deal with them than if we implicitly endorse those opinions and attitudes by our silence.
It will also force the speakers to think about whether their speech is based on deeply held beliefs, or is merely thoughtless.
I want to explain, as briefly as I can, why I think that freedom of expression is essential to higher education. What makes higher education higher, in my view, is that it brings students into direct contact with the activities of inquiry and invention by which new ideas are developedby which people come to think things that haven't been thought before. These intellectual activities have several features that make them dependent on the widest possible freedom of expression.
What is most often misunderstood about intellectual activities is that they are not transparent to the participants. In the course of inquiring or inventing, we do not know where we are going to end up, and the reason is often that we do not even know where we are. Our thoughts are inchoate, unformed; we do not fully understand their meaning, and so we cannot foresee their ultimate implications. This feature makes inquiry and invention exhilarating, but it also makes them frightening. In order to induce students to become inquirers and inventors, we must assuage their fears of thinking inchoate thoughts on the way to unpredictable conclusions. You may feel lost, we say, but keep going: dont turn back.
What assurance can we give students that it is safe to explore unfamiliar ways of thinking? We cannot assure them that they won't go wrong, since they almost certainly will, from time to time. The only assurance we can give them is that no matter what they find themselves thinking, it wont be wrong in the sense that they never should have thought it; what they think can be wrong only in the sense that it will come under criticism and revision as they think further. Our assurance to them is: Dont be afraid what you might find yourself thinking: you can always think again.
A second feature of intellectual activities is that they are rarely solitary, because we do our best thinking in conversation with others. The lack of transparency in our thinking is therefore manifested in intellectual conversation. We cant predict the outcome of this conversation, and the reason is often that we don#146;t even know what were saying. Were expressing inchoate thoughts, in the hope that others can help us to see what they mean or where they will lead. So intellectual conversation can also be frightening, and we cannot induce students to join it unless we assuage their fears. You may not have worked out your idea, we say to students, but say what you can, and well work it out together. You havent fully formatted your question, we say, but ask it anyway. Here again, we cannot assure students that what they say wont be wrong in the sense that they never should have said it; it can be wrong only in the sense it will come under criticism and revision as the conversation continues. Our assurance to them is: Dont be afraid of what you might find yourself saying: we can always talk further.
These assurances closely approximate a familiar political defense of free speech, to the effect that the appropriate remedy for offensive speech is more speech. Whatever justification this claim may have in the political realm, its justification in the realm of higher education is that intellectual activity is a process of trial and error, which becomes unsafe if error is subject to punishment.
Of course, theres a difference between being in error and being offensive. Some people therefore think that we can simultaneously protect intellectual activity and regulate offensive speech, by protecting the expression of opinion, which is the locus of error, while regulating the expression of other attitudes, such as hatred and contempt, which are potentially offensive. This hope is misguided for many reasons.
The first reason is that the modes of inquiry and invention that are essential to higher education include the activities of creating and interpreting cultural artifactsactivities that essentially involve the exercise of emotion as well as opinion. How can composers, novelists or critics explore the artistic idioms of another culture if they have to know in advance what attitudes toward that culture they will end up expressing, or being interpreted as having expressed? Second, even scientific inquiry is not dispassionate, andfor reasons that Ive now discussedthe line between opinion and emotion may not be visible to the participants until they have already crossed it. One of the senses in which we dont know whether we#146;re thinking, in the course of inquiry is that we dont know whether were thinking with our heads or our hearts. We have to express our ideas at a point where we may not see the reasons or passions behind them.
Obviously, there are particular instances of expression on the subject of race and ethnicity that do considerable harm and contribute nothing of value to the conversation. The academic community would be better off without these instances of expression. The problem comes when we try to rule them out, through measures of discipline, formal or informal. For we cannot rule out these egregious instances of expression without establishing formal or informal rules, which speakers can obey only by making sure that they understand what theyre about to say before they say it. We end up making it unsafe to engage in unguarded discourse about the topicunsafe to brainstorm about it, to experiment with it, to let our artistic imaginations loose on it. We are consequently reduced to mouthing approved pieties and platitudes. We are already close to that point on this campus, but we should draw back from it, if we can.