In the late 1980s, numerous colleges and universities designed and adopted speech codes to curtail racist and other discriminatory speech. You can’t say they weren’t provoked. The University of Michigan, for example, adopted its code in the wake of a number of incidents including the distribution of fliers peppered with disgusting racial slurs that declared an “open season” on blacks. But at least at public universities, which must respect the First Amendment as agents of the state, these speech codes have been constitutional losers.
According to Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, “every court to consider such a hate speech code declared it to be unconstitutional.” Such codes cannot, it seems, be drawn narrowly enough to avoid encroaching on constitutionally protected speech. The University of Michigan, for example, resolved a complaint against a student who had said of a class that “he had heard that minorities had a difficult time in the course and that he had heard that they were not treated fairly.” The professor in the class, a member of a minority group, filed the complaint on the grounds that the student’s speech might undermine her tenure case.
This example of overbreadth is not only a reason why the code was struck down in Doe v. University of Michigan (1989). It does, however, suggest that speech codes are often deployed against people who are not engaged in even mildly offensive speech, let alone harassment. That, coupled with the absence of proof that speech codes are effective at addressing the discrimination they purport to address, should have killed them long ago. Yet both public and private universities continue to maintain policies on speech that do not pass the First Amendment laugh test.
Consider Kentucky State University, whose speech code is the “Speech Code of the Month” for the Foundation of Individual Rights in Education (FIRE). Kentucky State’s Student Code of Conduct, reasonably enough, concerns itself with “offenses against persons,” including “any contact or communication that threatens, harasses, or injures a person.” But listed among the example of such offenses, along with “physical assault,” “coercion,” and “threats,” is “embarrassment.” Yes, really. As FIRE says, it appears that a student at Kentucky State University “can face disciplinary action for embarrassing another person.” That certainly would seem to “directly [affect] students’ ability to engage in unfettered, free-wheeling debate and argument on important political and social issues.” I suppose, in theory, it directly affects their ability to point out the schmutz on a classmate’s shirt.
It is hard to imagine that this code is enforced, so we need not tremble for the right of students to poke fun at each other at KSU. But the persistence of codes like KSU’s in the face of clear guidance from courts regarding their unconstitutionality, and in the absence of evidence that they do more good than harm, is a mystery. Are those who devise such codes ignorant of the law and of their record? Or do they stick with them because they are willing to risk legal challenge and their reputations only to appear to be on the right side of history concerning prejudice?
Either way—and I can say this because I am not subject to KSU’s student code of conduct—KSU’s leaders deserve to be embarrassed.