{"id":71048,"date":"2023-12-12T00:20:57","date_gmt":"2023-12-12T05:20:57","guid":{"rendered":"https:\/\/world.edu\/?p=71048"},"modified":"2023-12-12T00:20:57","modified_gmt":"2023-12-12T05:20:57","slug":"why-university-presidents-find-it-hard-to-punish-advocating-genocide-%e2%88%92-college-free-speech-codes-are-both-more-and-less-protective-than-the-first-amendment","status":"publish","type":"post","link":"https:\/\/world.edu\/why-university-presidents-find-it-hard-to-punish-advocating-genocide-%e2%88%92-college-free-speech-codes-are-both-more-and-less-protective-than-the-first-amendment\/","title":{"rendered":"Why university presidents find it hard to punish advocating genocide \u2212 college free speech codes are both more and less protective than the First Amendment"},"content":{"rendered":"

\"\"<\/p>\n

If a student were to walk off the Harvard campus and onto a street in the city of Cambridge, Massachusetts, and argue for the genocide of Jews, the U.S. Constitution would bar prosecuting her for hate speech.<\/p>\n

If the same student left her perch on the sidewalk and returned to the Harvard campus to continue the rant, the student could be silenced by campus police and either suspended or expelled from the university under\u00a0the school\u2019s code of conduct<\/a>.<\/p>\n

The same is true for many other campuses across the nation, including the University of Pennsylvania and MIT. Private colleges and universities have speech codes that allow them to punish certain speech. But in their Dec. 6, 2023, testimony before Congress\u00a0about antisemitism on their campuses<\/a>, Presidents Elizabeth Magill of UPenn, Sally Kornbluth of MIT and Claudine Gay of Harvard failed to clearly state that, when pressed by U. S. Rep. Elise Stefanik to explain what would happen if someone on campus called for the genocide of Jews. Magill\u00a0just resigned<\/a>, in large part over the furor that followed.<\/p>\n

I taught undergraduates argumentation and First Amendment law for 15 years at Syracuse University and have written a user\u2019s guide on the First Amendment:\u00a0When Freedom Speaks<\/a>.<\/p>\n

I am surprised by the presidents\u2019 failure\u00a0to respond clearly<\/a>\u00a0to Stefanik\u2019s question. The primary purpose of schools is to educate. Private colleges and universities are governed by codes of conduct that support and carry out that objective.<\/p>\n

Although private colleges and universities can and often do attempt to recreate the\u00a0broad boundaries of protected speech provided by the First Amendment<\/a>, those boundaries can legally be narrowed by their educational mission. They do this because hatred can poison a healthy learning environment and impair the ability of targeted students to participate fully.<\/p>\n

Public colleges generally must apply broader constitutional standards regarding speech on campus. But campus codes at private colleges and universities seek to resolve the conflict between the right to speak freely and the educational mission of the institution. The ham-handed and over-legalistic responses by the three university presidents show how this attempt to balance speech and safety can create confusion, conflict and the opportunity for selective enforcement decisions based on academic fashion, not values of free and open debate.<\/p>\n

Private restrictions; public free speech<\/strong><\/h4>\n

Words matter. As long as the words don\u2019t include a realistic threat that sticks, stones and worse will soon follow, the\u00a0First Amendment<\/a>\u00a0protects them from repression by the government.<\/p>\n

Constitutionally speaking, ideas \u2013 whether they be mainstream or scorned \u2013\u00a0that do not incite violence<\/a>\u00a0or\u00a0intentionally terrorize the target<\/a>\u00a0are permissible speech. The First Amendment requires such ideas be available to the public to examine and criticize. Hyperbolic hate speech, even speech that endorses genocide or calls for\u00a0forced racial and ethnic division<\/a>, cannot be criminally prosecuted by states or the federal government. Those words might offend and frighten, but they are often part and parcel of emotionally charged political speech.<\/p>\n

Harvard provides an example of how campus conduct codes restrict speech that would normally be allowed under the First Amendment. The\u00a0student handbook<\/a>\u00a0states that the free exchange of ideas must proceed within the \u201cbounds of reasoned dissent.\u201d The First Amendment does not demand any such limitation on speech, and state and federal governments are constitutionally prohibited from establishing or enforcing any such commitments.<\/p>\n

The code of conduct at the University of Pennsylvania<\/a>\u00a0requires the members of its community to \u201crespect the health and safety of others.\u201d Under the First Amendment, though, state and federal governments are constitutionally prohibited from requiring such limits.<\/p>\n

MIT prohibits harassment<\/a>, defined as \u201cpublic and personal tirades.\u201d The First Amendment provides no such moral guidelines. It does not distinguish between truth or lies, myth or reality, virtue or villainy. It only creates a space to speak where the government has limited power to interfere.<\/p>\n

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The Dec. 9, 2023, announcement of President Elizabeth Magill\u2019s resignation, by Scott L. Bok, chair of the Penn Board of Trustees. UPenn website<\/p><\/div>\n

Selective enforcement?<\/strong><\/h4>\n

Yet despite universities\u2019 codes of conduct, there is a growing perception \u2013 supported by the highly technical and qualified answers given at the hearing by the college presidents \u2013 that they and other colleges and universities are\u00a0selective in their application of conduct codes<\/a>\u00a0and use them to promote a\u00a0political agenda<\/a>.<\/p>\n

In situations involving race and gender, schools have been quick to warn against, rein in or punish speech that administrators find offensive. In 2017,\u00a0Harvard rescinded admission offers to 10 students<\/a>\u00a0who posted sexually explicit memes, some targeting minority groups. Stefanik,\u00a0in a Wall Street Journal op-ed<\/a>, wrote that in 2022, as part of mandatory anti-bias training, Harvard warned its undergraduate students that\u00a0cisheterosexism, fatphobia and using the wrong pronouns was abusive<\/a>.<\/p>\n

In 2016, several colleges issued proposed guidelines regarding\u00a0offensive Halloween costumes<\/a>. In 2013, two students at Lewis & Clark College were charged with discrimination or harassment for\u00a0hosting a private, racially themed party<\/a>. In 2006, the University of Wisconsin attempted to\u00a0limit printing of a satirical article<\/a>\u00a0deemed by the administration to threaten the recruitment and retention of students from underrepresented groups, although that decision was later reversed.<\/p>\n

In contrast,\u00a0Jewish students at the three universities<\/a>\u00a0whose presidents testified in Congress accuse their schools of failing to\u00a0provide a clear response to alleged repeated harassment<\/a>\u00a0of Jewish students and staff members.<\/p>\n

Advocates for campus free speech<\/strong><\/h4>\n

But rather than punishing certain speech, others call for colleges and universities\u00a0to hold fast to the principle underlying First Amendment freedoms<\/a>: More speech, not less, leads to a healthy democracy.<\/p>\n

Proponents of robust speech protections on campus argue that codes that confine speech to polite dialogue\u00a0stifle the ability to learn<\/a>\u00a0about\u00a0different perspectives and truths<\/a>, which sometimes only find expression in heated diatribes. Instead, they propose that, in addition to clear condemnation, educational institutions should respond to hateful speech with\u00a0countermessaging and dialogue as well as support for targeted individuals and groups<\/a>.<\/p>\n

Many of today\u2019s students have little understanding or respect for a campus \u2013 and by inference, a democracy \u2013 where all ideas are subject to scrutiny, particularly those that are loathsome to them. To me,\u00a0the data is alarming<\/a>:<\/p>\n