Free Speech on Campus...

Peter Berkowitz summarizes some amazing abuses of free speech from Donald Downs' book "Restoring Free Speech and Liberty on Campus."

In february 2000, for example, Columbia University enacted a new “Sexual Misconduct Policy.” Proponents had claimed that the university had been covering up an “epidemic of rape” on campus. And they argued that procedural guarantees for the accused — the right to a presumption of innocence, to be present during testimony and to confront one’s accuser, to be accompanied at hearings by an attorney, to an impartial judge and jury that were, among other things, separate from the prosecution — would contribute to the cover-up. Moreover, proponents argued, while procedural protections for the accused may be appropriate in an adversarial process, the purpose of the Columbia University proceedings would be to “ferret things out,” to “avoid confrontation,” to refrain from an “adversarial posture.”

Students rallied in favor of the policy. Very few faculty members stepped forward to utter the obvious: Allegations of sexual misconduct including rape are inherently grave and irreducibly adversarial, and therefore elemental procedural protections for the accused are indispensable. But for the intervention of a then-new organization, the Foundation for Individual Rights in Education, the policy as enacted would likely still be in place at Columbia. When letters it sent to Columbia’s 20 trustees went unanswered, fire turned to the press. A blistering Wall Street Journal op-ed by Dorothy Rabinowitz was followed by a report in the New York Times and several hard-hitting front-page pieces in the Village Voice. By the fall of 2001, as a result of intense outside pressure and a small number of committed Columbia students, the university issued a revised policy. It recognized the irreducibly adversarial nature of proceedings concerning sexual misconduct and incorporated considerably enhanced protections for the accused — though considerably short of what one might expect, given that the policy covered allegations that could expose the accused to severe criminal liability.

Consider as well the rise of anti-free-speech activism at the University of California at Berkeley. Although he found no particular problems in the classroom (with the exception of the Boalt Hall law school, where he found student hostility to conservative opinions in the classroom) or in initiatives originating in the administration, Downs did find at Berkeley “‘progressive social censorship’ in the public forum — meaning pressure from individuals or groups outside of government or official institutions in the name of progressive causes, such as the shouting down of speakers, intimidation, threats, the theft of publications, and even burglary.” Unfortunately, Downs did not find, especially when the chips were down, the administration or faculty stepping forward to defend free speech.

The most notorious incident involved the publication in February 2001 by the student newspaper, the Daily Californian, of a paid advertisement by David Horowitz entitled “Ten Reasons Why Reparations for Blacks is a Bad Idea for Blacks — and Racist Too.” Although the ad was meant to be polemical and did spark outrage on campus, it in no way suggested that blacks were deserving of anything less than freedom and equality under law. The Berkeley chapter of bamn (“By Any Means Necessary,” which comes from the title of a book by Malcolm X) immediately denounced the Daily Cal as “racist.” Students in the hundreds gathered in front of the newspaper to demand an apology, and the editorial board swiftly caved, publishing the next day an unsigned apology in which the editors “confessed that the paper had allowed itself ‘to become an inadvertent vehicle for bigotry.’”

Appeasement, however, only inflamed the problem. The Daily Cal found itself not only under continuing criticism on campus for racism and insensitivity, but also under enormous criticism from the national media for abandonment of the principle of a free press and cowardly capitulation to the forces of political correctness. “During this episode,” Downs ruefully reports, “no faculty members or administrators spoke up in support of the First Amendment or free speech, either in the press or in public.” At the same time, he quotes a student editor on his real teachers in the crisis: “‘Had we not had that national media backlash, I don’t know that any of us would have thought twice about it being wrong to apologize. I know that I started to self educate myself on the First Amendment afterwards’.”

Recall, finally, the notorious “water buffalo” incident at the University of Pennsylvania. Late one evening in January 1993, a group of African American sorority sisters could be heard reveling outside a student residence hall. Several students shouted out their windows demanding quiet. Some yelled racial epithets. Only one student, however, actually admitted to yelling anything. That was freshman Eden Jacobowitz, an orthodox Jew, who shouted “Shut up, you water buffalo! If you want a party, there’s a zoo a mile from here.” Jacobowitz insisted to the university authorities who questioned him that water buffalo was not a racial epithet but rather a translation of the Hebrew word “behemoth,” which could be used colloquially to mean a rowdy person. He offered to apologize for being rude. But the university would not accept it. Penn’s “Judicial Inquiry Officer” informed Jacobowitz in March that he would be prosecuted under the university’s racial harassment code on the grounds that water buffalo referred to an African animal. At which point the freshman, who in his own words “couldn’t find anyone who was willing to take on the university,” found himself “completely alone.”

Until, that is, he encountered Professor Alan Charles Kors, a gifted teacher and distinguished scholar in the Penn history department (and eventual co-founder of fire). Kors first tried reasoning with then-University of Pennsylvania President Sheldon Hackney and members of his administration, but to no avail. Penn proceeded to make preparations for a late-April hearing to consider the charges against Jacobowitz. Days before the hearing was set to take place, though, the Forward, a leading Jewish newspaper in New York, ran a story on the case. This was followed by a Dorothy Rabinowitz Wall Street Journal column denouncing Penn’s prosecution. And then the case exploded into the national media, with the vast majority of commentary coming down decisively against Penn and its harassment code.

The university’s response was to dig in its heels. It declared that the hearing must take place in May, despite Jacobowitz’s protest that by that time many of his witnesses would have gone home for the summer, and despite the university’s having lost a police report exonerating him. It was only when Kors and Jacobowitz filed a lawsuit against the principal administrators responsible for the prosecution, including President Hackney, that Penn agreed to change the focus of the hearing from the question of guilt or innocence to that of whether the charges should be dismissed. Ten days after the hearing, but before the panel issued its decision, Hackney — who had in the meantime been nominated by President Clinton to head the neh and was in Washington preparing for Senate confirmation hearings — called Kors with a deal in which the complainants would drop all charges (oddly, Hackney seemed to be serving as counsel for the complainants) and, in return, Jacobowitz (as he had initially volunteered to do) would apologize for rudeness. Jacobowitz accepted the deal.

Sounds like another interesting book to read.