Rights at Risk: The Limits of Liberty in Modern America (Vintage)

by David K. Shipler

  In 1969, three years after Chattanooga’s Brainerd High School was integrated, racial tensions soared over the use of “Dixie” as its pep song and the Confederate flag as its emblem. Major demonstrations and counterdemonstrations erupted among the students, of whom only 170 were black and 1,224 white, prompting the school board to drop the song and the flag the following year and adopt a code of conduct banning “provocative symbols on clothing.” A student who wore a flag on the sleeve of his jacket was told to remove it, refused, and was suspended. In 1972, the Sixth Circuit ruled for the school.29

  In 1997, a South Carolina school that had suffered disorder won the right in federal court to require a student to remove a jacket bearing the flag.30 And in 2000, two federal appeals courts upheld schools’ power to act, one against a student who had taken a dare from a classmate and drawn a picture of a flag on a piece of paper,31 the other against a student who had shown his friends a flag during a history discussion. Among a school’s tasks, the court declared in the second case, was to “teach students of different races, creeds, and colors to engage each other in civil terms.”32 How they do so without examining and discussing this symbol’s meanings is unclear. Suppression is not engagement.

  Where schools cannot show a history of disruption, judges have leaned toward the students’ First Amendment rights. In 2001, the Sixth Circuit ruled in favor of two Kentucky students suspended for wearing T-shirts celebrating a Hank Williams Jr. concert, with two Confederate flags and the words “Southern Thunder,” in violation of a dress code banning clothing with “illegal, immoral, or racist implications.” Although the school had experienced racial tension, including fights, there had been no evidence of clashes around the flag, and the school had permitted African-Americans to wear Malcolm X shirts as symbols of militant black power.33

  Similarly, a teenager won in federal court after being disciplined for wearing a Confederate flag T-shirt in a West Virginia school with no history of disorders. Following Tinker’s formula, the judge ruled that a ban was not “warranted simply because some associate it with racism,” although the flag might be prohibited if used “as a tool for disruption, intimidation, or trampling upon the rights of others.”34

  The trouble with this highly practical method of judgment is that disruptive kids get to decide what speech in schools is unprotected by the First Amendment. All they have to do is demonstrate or fight whenever the unwelcome message appears, and they’ve given officials the evidence they need to convince a court. This presents a dilemma: it revives the “fighting words” doctrine in schools and awards a “heckler’s veto,” but it also provides principals with the authority to keep order, a necessary prerequisite of education.

  Colleges have tried to legislate harmony by enacting speech codes. The strategy is designed to insulate minorities from hostility, but it tends to substitute discipline for education. It often permits administrators to take the easy path of suspension or expulsion when a more sophisticated, sustained effort at teaching might do better. It allows bigoted perpetrators who are punished to cast themselves as victims of censorship and wrap themselves nobly in the mantle of the First Amendment. It has given conservative students the opportunity to compete for the persecution prize on campus when they feel silenced by the doctrine of “political correctness,” that old communist concept adopted sardonically by the radical right to deride the intolerance of enforced tolerance.

  Since the Bill of Rights restricts only government’s intrusion into individual liberties, private colleges are generally free to impose rules on expression while state institutions are not. Even private universities that get federal grants—and practically all do—are not subject to the First Amendment, because the courts have repeatedly held that the receipt of federal funds does not convert private universities into “state actors.” No federal law makes free speech a condition of such funding.35 This stands in contrast to the Civil Rights Act, which prohibits grant recipients from discriminating on the basis of race or national origin under Title VI, and gender under Title IX.36 So far, offensive speech has not been construed as discrimination.

  Nevertheless, some private colleges, such as Harvard and Dartmouth, voluntarily adhere to First Amendment standards, and others are required to do so by state statutes such as California’s, under which Stanford’s speech code was declared unlawful in 1995.37

  Where the Constitution protects individual rights against government—as at state universities—the codes have usually been struck down when challenged. That isn’t enough for some right-wing organizations, which have lamented the leftward tilt of faculties, have posted public lists of “dangerous” liberal professors,38 and have lobbied in state legislatures for a high-sounding “academic bill of rights” to preclude political orthodoxy and foster “intellectual diversity” in hiring professors, granting tenure, assigning readings, and selecting outside speakers.39

  Promoted as a campaign to keep freedom of thought alive, the effort contains an insidious worm of state intrusion, since ensuring a range of political opinions would entail government monitoring, even inside the classroom. This would be a speech code of a different sort, not precluding certain speech but requiring it.

  In state universities, speech codes create a clash between two monumental constitutional rights: the First Amendment’s guarantee of freedom of speech and the Fourteenth Amendment’s guarantee of equal protection under the law, which on campus means equal educational opportunity. You are not going to function well academically if you are subjected to swastikas on your dormitory door and racist slurs by e-mail, and if the college community becomes a place of unease, rejection, and hostility for members of your ethnic, religious, or racial group. Nor is the student who gets away with vilifying minorities going to learn what is needed to function well in the diverse world of adulthood. After graduation, if you try some of those hateful expressions, you’ll be out the door of most workplaces in a flash.

  But this conflict in college cannot be well resolved in court. A judge holds only the blunt instrument of victory or defeat; she cannot ordain a nuanced educational process. She cannot foster acceptance and mutual insight on a multiethnic campus. When administrators punish and students sue, leading and teaching fall by the wayside.

  When a Dartmouth fraternity staged a “ghetto party” with Afro wigs, baggy jeans, dashikis, and gang colors in 1999, African-American students were pained, felt stereotyped, and complained. Without a speech code, though, the college could not retreat into a sanctuary of quasi-judicial hearings and punishments, and that was fortunate. Instead, black students, who are usually left to battle such slurs alone, were joined this time by many white students, and together, across racial lines, they organized a day and an evening of discussions, panels, workshops, and cathartic introspection that brought in professors and administrators to talk through the confounding issues of race and class with the hundreds who turned out. An offense became a teaching opportunity rather than a disciplinary case.

  “The target of hate speech is not the only victim,” observed David Tatel, a veteran civil rights lawyer who became a federal appeals court judge. “Racially offensive speech victimizes all on campus; indeed, it victimizes the entire academic institution.” It is “a symptom of a deeper, underlying problem which cannot be solved through the issuance of punitive regulations.” Therefore, he reasoned, both the First and the Fourteenth Amendments must be honored, not set against each other. “Imagine how successful the boycotts and marches of the civil rights movement would have been without the protective umbrella of the First Amendment,” he said. Yet “the First Amendment’s guarantee of free expression would have little meaning without the equal educational guarantee of the Fourteenth Amendment,” he added. “Racist speech presents a real and serious threat to the educational opportunities of minority students.” The solution, then, “should be educational, not disciplinary.”40

  In the wake of desegregation, as growing numbers of blacks and Hispanics moved up into the middle
class, universities came to see the value of assembling diverse student bodies as a benefit not only to minorities but to whites as well, as part of their preparation for a multicolored world. Admissions officers started to recruit actively in the high schools of poor and working-class neighborhoods, and when they found talented black and Hispanic applicants, they looked past rigid test scores into capabilities less easily quantified. This was a form of affirmative action. Variegated campus communities resulted. And with the influx of minority students came hateful reactions from scattered groups of vocal whites.

  During the first two months of 1987, for example, a student-run radio station at the University of Michigan broadcast racist jokes, a white Ku Klux Klan robe was hung from a dorm window, and anonymous flyers were circulated caricaturing blacks as “saucer lips, porch monkeys, and jigaboos.” The leaflets declared “open season” on African-Americans.

  An outcry followed in the state legislature, where a powerful committee chair threatened to delay funding if the university failed to act. A student group threatened a lawsuit against administrators “for not maintaining or creating a non-racist, non-violent atmosphere.” The university president resigned nine months later.

  After a dozen drafts and much discussion, the board of regents approved an intricate speech code that left expression virtually unfettered in public areas, including the university-sponsored daily newspaper and other student publications. But in dorms, recreational settings, and academic buildings, the rules punished “any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap or Vietnam-era veteran status” if it conveyed a threat, interfered with academic work, or created “an intimidating, hostile, or demeaning environment.”

  An interpretive guide by the university’s Office of Affirmative Action gave hypothetical cases of sanctionable speech and behavior; they included a flyer making racist threats, the exclusion of a suspected lesbian from a dorm party, and a demand by two men that their roommate move out and be tested for AIDS. One section began, “YOU are a harasser when …” and listed such examples as: “You exclude someone from a study group because that person is of a different race, sex, or ethnic origin than you are. You tell jokes about gay men and lesbians. You display a Confederate flag on the door of your room in the residence hall. You laugh at a joke about someone in your class who stutters. You make obscene telephone calls or send racist notes or computer messages.”

  One of the cautionary hypotheticals sparked a lawsuit: “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.” Reading that, a psychology graduate student, identified only as “John Doe” in court papers, worried that his right to discuss “controversial theories positing biologically-based differences between sexes and races” might be punishable as sexist and racist.

  Citing Tinker, a federal district court judge ruled for the student and permanently enjoined the University of Michigan from enforcing its speech code.41

  Other decisions by federal courts marked this legal landscape. In 1991, a district judge overturned the University of Wisconsin’s hate speech regulation as unconstitutionally vague and overbroad. The code was unclear on whether someone had to demean the target and create a hostile atmosphere in actuality or merely intend to do so. And it was deemed overbroad because it prohibited types of speech protected by the First Amendment.42

  In 1992, the Supreme Court in R.A.V. v. City of St. Paul struck down an ordinance outlawing graffiti or symbols that would “arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender,” which the majority found so narrow as to bar only messages with certain content.43

  The following year, the Fourth Circuit overturned George Mason University’s sanctions against a fraternity that had held an “ugly woman contest” in which a performer had put on blackface, women’s clothes, and padding to create a caricature. While agreeing “wholeheartedly” with a public university’s interest in “maintaining an environment free of discrimination and racism, and in providing gender-neutral education,” the court cited R.A.V.’s ban on “selective limitations upon speech” and declared, “The University should have accomplished its goals in some fashion other than silencing speech on the basis of its viewpoint.”44

  As things stand, then, it’s hard for either public schools or public universities to suppress individuals’ speech merely to spare people’s feelings. They keep trying, and the courts keep saying no, unless the insulting words or symbols risk igniting violence or other disruption.

  EROSION

  Yet the Supreme Court has begun to define those risks quite loosely, not to protect minorities, but to give school authorities license to control messages in settings that they organize. This concept of school-sponsored speech, invented and expanded by the Court, now allows principals to censor student publications, campaign speeches, and even banners just outside the schoolhouse gate.

  Tinker established the foundation of speech rights in both public schools and public universities. But its scope was narrowed with the Supreme Court’s rightward shift in the 1980s, especially by two significant rulings, one banning lewdness (Bethel School District No. 403 v. Fraser) and the other censoring student newspapers (Hazelwood v. Kuhlmeier). In the first case, the Court decided that vulgarity and other bad manners could be prohibited outright, and in the second, that speech seemingly sponsored by a school, as in a school publication, could be regulated to conform with an administration’s policies.

  If the cases had been limited to their specific circumstances, their damage to students’ First Amendment rights might have been contained. But lower courts have applied their principles more broadly, allowing administrators canny enough to know the law to find ways to silence expression that they find offensive or merely inconvenient.

  About an hour before nominating a friend for student government, Matthew Fraser wrote a speech full of sexual innuendo, which he delivered to his high school assembly in Bethel, Washington. “I know a man who is firm,” he said. “He’s firm in his pants, he’s firm in his shirt, and his character is firm. But most of all, his belief in us, the students of Bethel, is firm. Jeff Kuhlman is a man who takes his point and pounds it in.… He doesn’t attack things in spurts. He drives hard, pushing and pushing until finally he succeeds. Jeff is a man who will go to the very end—even the climax—for each and every one of you.”45 There were hoots in the assembly and congratulations afterward.

  The next day Fraser was suspended. He sued, and he won in two lower courts, which found no substantial disruption as required by Tinker. But he lost in the Supreme Court, 7–2. While nodding respectfully to the Tinker standards, Chief Justice Warren Burger tempered them by declaring that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” He created a balancing test, noting that a school’s functions included teaching civility. “The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society’s countervailing interest in teaching students the boundaries of socially appropriate behavior,” he wrote for the Court. “Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences.… A high school assembly or classroom is no place for a sexually explicit monologue directed towards an unsuspecting audience of teenage students.”

  That line about the assembly contained the seed of an idea that later grew and invaded students’ rights: the concept that officials could stifle unwelcome words in a school-sponsored setting, in this case, because the assembly had been arranged by the school, which required students to attend or go to a study hall.46

  Matt Fraser became a martyr of sorts, and predictably the schoo
l couldn’t shut down the sexual references. Football players made signs saying “Stand Firm for Matt,” and students chose him by write-in to give the graduation speech. He later became debate coach at Stanford University.47

  In the old adage, bad cases make bad law. Next to the principled Tinker kids, Matt Fraser was just an adolescent wise guy. Next to the Tinkers’ serious, quiet statement on a grave issue, Fraser’s was half-witty titillation, a lightweight try. The case was nothing more than a principal’s overreaction to a sassy student’s poor taste, elevated by crotchety judges to a restriction on schoolchildren across the land—curtailing not only obscenity but other expression that an administration deems inappropriate. Sensible principals might draw that line reasonably, but the constitutional culture is corrupted when battalions of autocratic principals have command authority to determine the limits of speech.

  In his dissent, Justice John Paul Stevens seemed sorry that he and his colleagues weren’t teenagers themselves. Matt Fraser, he wrote, “was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word—or a sexual metaphor—than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.”

  In public, Fraser would have had much more latitude than in school, as an appellate court judge had observed in an earlier opinion. Remembering the “Fuck the Draft” jacket that the Supreme Court had allowed Paul Robert Cohen to wear in a Los Angeles courthouse, the judge issued a succinct appraisal of students’ freedoms: “The First Amendment gives a high school student in the classroom the right to wear Tinker’s armband, but not Cohen’s jacket.”48