Even at public universities, 18-year-olds are purchasing what is essentially a luxury product. Is it any wonder they feel entitled to control the experience? . . . Students, accustomed to authoring every facet of their college experience, now want their institutions to mirror their views. If the customers can determine the curriculum and select all their desired amenities, it stands to reason that they should also determine which speakers ought to be invited to campus and what opinions can be articulated in their midst. For today’s students, one might say, speakers are amenities.21
The consumerization theory fits with the trend toward greater spending on lifestyle amenities, which schools use when they compete with other schools to attract top students. From 2003 to 2013, public research universities increased spending on student services by 22.3%, which was far more than the increases for research (9.5%) or instruction (9.4%).22 Many campuses have become less like scholarly monasteries and more like luxurious “country clubs.”23 The trend is exemplified by Louisiana State University’s 536-foot-long “lazy river,” paid for with $85 million in student fees. The slow-moving current gently pushes floating students through a winding pool in the shape of the school’s initials, LSU.24 At the ribbon cutting for the lazy river, LSU’s president explained how his vision of education combines consumerism and safetyism: “Quite frankly, I don’t want you to leave the campus ever. So whatever we need to do to keep you here, we’ll keep you safe here. We’re here to give you everything you need.”25
How Campus Administrators Model Distorted Thinking
The shift toward seeing students as consumers explains a lot, but it cannot explain what happened at Northern Michigan University, or what administrators are thinking when they restrict the speech of their “customers.” To comprehend those events, we need to understand other forces acting on administrators, including the fear of bad publicity and threats of litigation. Administrators are bombarded with directives (from in-house counsel, outside risk-management professionals, the school’s public relations team, and the upper echelons of the administration) that they must limit the university’s legal liability in everything from personal injury lawsuits to wrongful termination, and from intellectual property to wrongful-death actions. This is one reason they are so keen to regulate what students do and say.
In the first decade of the twenty-first century, FIRE was the only organization entirely focused on free speech, academic freedom, and due process on college campuses. The lack of public attention to free speech on campus during that decade is understandable given that the speech at the center of the debate was often rather unsympathetic—like what one professor said on September 11, 2001, when he joked, “anybody who can blow up the Pentagon has my vote.” Eventually he lost his job. From a First Amendment standpoint, however, the cases were clear-cut. The amendment’s bedrock principle is that offensiveness alone is no justification for banning or restricting speech—especially on campus.26
For most of Greg’s career, students were consistently the most tolerant and pro–free speech constituency on campus—even more so than the faculty. Around 2013, however, Greg began to notice a change. More students seemed to be in agreement with administrators that they were unsafe, that many aspects of students’ lives needed to be carefully regulated by adults, and that it was far better to overreact to potential risks and threats than to underreact. In this way, campus administrators—usually with the best of intentions—were modeling distorted thinking.27
Two categories of First Amendment cases on campus encourage this kind of thinking quite directly: overreaction and overregulation.
OVERREACTION CASES
We define overreaction cases exactly as the name suggests: they are disproportionate responses to perceived offenses. Almost all overreaction cases model the mental habit of catastrophizing, and communicate that disaster would result without the intervention of the administration.28 Here are two examples:
Bergen Community College (New Jersey, 2014): An art professor was placed on leave without pay and sent to psychological counseling for a social media post. The post showed a photograph of his young daughter wearing a T-shirt that depicted a dragon and the words I WILL TAKE WHAT IS MINE WITH FIRE & BLOOD, which the school claimed was “threatening.” The professor explained that the shirt referenced the popular TV series Game of Thrones, but an administrator insisted that “fire” could refer to an AK-47.29
Oakton Community College (Illinois, 2015): A professor received a cease-and-desist letter from his college based on a one-sentence email he had sent to a few colleagues. His email noted that May Day is a time “when workers across the world celebrate their struggle for union rights and remember the Haymarket riot in Chicago.” The college alleged that the reference to the 1886 riot was threatening to the college president, because she was one of the recipients of the email. Why? Because the rally “resulted in 11 deaths and more than 70 people injured.”30 Of course, many major American holidays commemorate events that were far more costly in terms of lives lost. But when a reference is made to Memorial Day, Veterans Day, or even the Fourth of July, nobody assumes it is a threat.
OVERREGULATION CASES
Overregulation is less about policing actual offenses than it is about preventing potential offense. It is like a continuation of overprotective helicopter parenting: administrators tightly regulate students in order to keep them “safe.” Speech remains a common target of overregulation, even though there have been more than seventy lawsuits against speech codes since the dawn of “politically correct” speech codes in the late 1980s. Almost all the codes challenged in court have been revised, abandoned, or ruled unconstitutional.
Here are two of the most absurd categories of speech regulation that keep popping up on American college campuses:
Vague and Overbroad Speech Codes: The code that epitomized the vagueness and breadth of the first wave of modern PC speech codes (roughly, the late 1980s to the mid-1990s) was the University of Connecticut’s ban on “inappropriately directed laughter.” The school was sued. It dropped the code as part of a settlement in 1990, but the same code, verbatim, was in effect at Drexel University in Philadelphia fifteen years later. That code was eventually repealed after being named one of FIRE’s “Speech Codes of the Month.”31 Along similar lines, a speech code at Alabama’s Jacksonville State University provided that “no student shall offend anyone on University property,” and the University of West Alabama’s code prohibited “harsh text messages or emails.”32 These codes teach students to use an overbroad and entirely subjective standard for determining wrongdoing. They also exemplify the Untruth of Emotional Reasoning: Always trust your feelings. If you feel offended, then a punishable offense must have occurred. Speech codes like these teach the Untruth of Fragility as well. They communicate that offensive speech or inappropriate laughter might be so damaging that administrators must step in to protect vulnerable and fragile students. And they empower college administrators to ensure that authority figures are always available to “resolve” verbal conflicts.
Free Speech Zones: Universities never seem to tire of creating “free speech zones,” which restrict certain kinds of speech and expression to tiny and often remote parts of campus. FSZs seem to have first appeared in the 1960s and ’70s as honored places where students could always engage in free speech, like Speakers’ Corner in London’s Hyde Park. But in the 1990s, many campuses made them the only places students could engage in free speech on campus. Some FSZs were revised after coming under public scrutiny and criticism, such as at McNeese State University in Louisiana, where student groups’ use of FSZs were limited to once per semester.33 Some have been struck down by courts, such as the University of Cincinnati’s FSZ, which covered 0.1% of campus and required speakers to register ten business days in advance.34 And yet schools continue to maintain them.
If you look at a college student handbook today, you’ll find policies affecting many other aspects o
f students’ lives, including what they can post on social media, what they can say in the dormitories to one another, and what they can do off campus—including what organizations they can join.35
Overreaction and overregulation are usually the work of people within bureaucratic structures who have developed a mindset commonly known as CYA (Cover Your Ass). They know they can be held responsible for any problem that arises on their watch, especially if they took no action to prevent it, so they often adopt a defensive stance. In their minds, overreacting is better than underreacting, overregulating is better than underregulating, and caution is better than courage. This attitude reinforces the safetyism mindset that many students learn in childhood.
See Something, Say Something
It certainly did not help that today’s college students were raised in the fearful years after the attacks of September 11, 2001. Ever since that awful day, the U.S. government has been telling us: “If you see something, say something.” Even adults are told to follow their most anxious feelings, as you can see in Figure 10.1. It’s a video sign at a New Jersey train station. New Jersey Transit urges its passengers to embrace the Untruth of Emotional Reasoning: Always trust your feelings. “If it doesn’t feel right, it probably isn’t,” says the sign. But that can’t really be true. In all likelihood, there are millions of moments each year when some American somewhere thinks that something “doesn’t feel right” and worries about an attack. However, there are only a few terrorist attacks of any kind each year in the United States,36 so in almost every case, the feeling is wrong. Of course, passengers on New Jersey Transit should alert someone if they see an abandoned backpack or suitcase, but that doesn’t mean that their feelings are “probably” right.
FIGURE 10.1. Video sign in the train station at Secaucus Junction, New Jersey. (Photo by Lenore Skenazy.)
Young people have come to believe that danger lurks everywhere, even in the classroom, and even in private conversations. Everyone must be vigilant and report threats to the authorities. At New York University in 2016, for example, administrators placed signs in the restrooms urging everyone to take a “feel-something say-something” approach to speech. The signs outline for members of the NYU community how to report one another anonymously if they experience “bias, discrimination, or harassment,” including by calling a “Bias Response Line.”37 NYU is not an outlier; a 2017 report by FIRE found that, of the 471 institutions cataloged in FIRE’s Spotlight on Speech Codes database, 38.4% (181) maintain some form of bias reporting system.38
Of course, there should be an easy way to report cases of true harassment and employment discrimination; such actions are immoral and unlawful. But bias alone is not harassment or discrimination. The term is not defined on the NYU Bias Response website, but psychological experiments have consistently shown that to be human is to have biases. We are biased toward ourselves and our ingroups, toward attractive people, toward people who have done us favors, and even toward people who share our name or birthday.39 Presumably the administrators running the Bias Response Line are most interested in negative biases based on identity categories, such as race, gender, and sexual orientation. But given the high levels of concept creep on university campuses and the widespread idea that microaggressions are ubiquitous and dangerous, there are sure to be some students who have a very low threshold for detecting bias in others and attributing ambiguous statements to prejudice.
It becomes more difficult to develop a sense of trust between professors and students in such an environment. The Bias Response Line allows students to report a professor for something said or shown even before the lecture has ended. Many professors now say that they are “teaching on tenterhooks” or “walking on eggshells,”40 which means that fewer of them are willing to try anything provocative in the classroom—or cover important but difficult course material. For example, writing about her experience teaching sexual assault law, Professor Jeannie Suk Gersen of Harvard Law School observed in The New Yorker that “asking students to challenge each other in discussions of rape law has become so difficult that teachers are starting to give up on the subject. . . . If the topic of sexual assault were to leave the law-school classroom, it would be a tremendous loss—above all to victims of sexual assault.”41
To show just one example of how bias response systems discourage risk-taking: University of Northern Colorado adjunct professor Mike Jensen was called to multiple meetings after a single student filed a “Bias Incident Report” following a discussion of controversial topics in a first-year writing class.42 The first reading assigned in the class was our Atlantic article, “The Coddling of the American Mind.” The professor asked the class to read the article and then engage in a discussion of a controversial topic, to be chosen by the class. The topic that the students chose was transgender issues. (One of the biggest stories that semester had been the revelation of Caitlyn Jenner’s identity as a trans woman.) Jensen suggested that students read an article about parents objecting to a transgender high school student using the girls’ locker room. He explained that although most of the students might not agree with these skeptical views, in academia, grappling with difficult and controversial perspectives is expected, so it was important that even these viewpoints be discussed. Jensen later recalled the conversation as “a very nice discussion of seeing other perspectives.”43 He was surprised when he learned that a student had filed a Bias Incident Report against him.44 He was advised to avoid the topic of transgender issues for the rest of the semester and was ultimately not rehired.45
The bureaucratic innovation of “bias response” tools may be well intended,46 but they can have the unintended negative effect of creating an “us versus them” campus climate that results in hypervigilance and reduced trust. Some professors end up concluding that it isn’t worth the risk of having to appear before a bureaucratic panel, so it’s better to just eliminate any material from the syllabus or lecture that could lead to a complaint. Then, as more and more professors shy away from potentially provocative materials and discussion topics, their students miss out on opportunities to develop intellectual antifragility. As a result, they may come to find even more material offensive and require even more protection.
Harassment and Concept Creep
Universities have an important moral and legal duty to prevent harassment on campus. What counts as harassment, however, has changed quite a lot in recent years. Modern conceptions of discriminatory harassment have their origins in Titles VI and VII of the Civil Rights Act of 1964. Title IX of the Education Amendments of 1972 expanded these statutes, prohibiting colleges that receive federal funds from discriminating against women with respect to educational opportunity. This protection was overdue and includes discrimination via harassment.47
Under these statutes, the bar for what counts as harassment is high: a pattern of severe behavior that “effectively denies access to an educational opportunity or benefit.”48 The pattern of behavior must also be discriminatory—that is, directed at someone who belongs to a protected class named in the statute, such as gender, race, or religion.49 In practice, however, the bar has been lowered; many universities use the concept of harassment to justify punishing one-time utterances that could be construed as offensive but don’t really look anything like harassment—and some don’t have anything to do with race or gender. For example, in 2005, at the University of Central Florida, a student was charged with harassment through “personal abuse” for creating a Facebook group that called a student government candidate a “Jerk and a Fool.”50 Perhaps you find that wrong or offensive, but should administrators be standing by, ready to step in whenever anyone feels offended?51 Or consider the case in which a student who worked as a janitor at his college was sanctioned because he was seen reading a book called Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan, a book that celebrates the defeat of the Klan when they marched on Notre Dame in the 1920s. (The image on the cover was upsetting to
the two people who reported him.)52 Lowering the bar that far trivializes the real harm that true harassment can do—and frequently does—to students’ education.53 The purpose of these laws is to protect students from unlawful acts, not to empower censors.
Nonetheless, in the 1980s, colleges defended the earliest codes as antiharassment codes. Courts had no trouble seeing through this kind of explanation and routinely struck down the codes of this era,54 beginning in 1989 with the University of Michigan’s speech code, which prohibited creating a “demeaning” environment through speech that “stigmatizes or victimizes an individual.55 Yet even after numerous court defeats, universities claimed that the Department of Education required speech codes in order to comply with Title IX and other civil rights laws.56
In 2013, the Departments of Education and Justice issued a sweeping new definition of harassment: any “unwelcome conduct of a sexual nature,” including “verbal, nonverbal, or physical conduct.”57 This definition was not limited to speech that would be offensive to a reasonable person, nor did it require that the alleged target actually be offended—both requirements of traditional harassment claims. By eliminating the reasonable-person standard, harassment was left to be defined by the self-reported subjective experience of every member of the university community. It was, in effect, emotional reasoning turned into a federal regulation.
The best example of how Title IX’s expanded notions of harassment have come to threaten free speech and academic freedom comes from the case of Northwestern University professor Laura Kipnis. In a May 2015 Chronicle of Higher Education essay, Kipnis criticized what she saw as “sexual paranoia” on her campus, arising from changing attitudes toward sex, and new ideas in feminism that she found disempowering. She wrote:
The Coddling of the American Mind Page 22