Speech codes are unconstitutional (get over it)
There is a certain phenomenon in American higher education that I just can’t seem to wrap my head around. It’s called ‘the speech code,’ and holy mackerel, it’s all the rage these days! — Even though policies regulating speech are completely antithetical to the purpose of higher learning; and even though courts have laughed at them. Over and over and over again. Because they are a joke and a disgrace.
So it’s really not surprising the Harvard Law Review published a comment that basically said, “Speech codes aren’t so bad. Keep ‘em. They are very chi chi.” Which is funny, because apparently the folks at HLR forgot to mention courts have ruled unanimously that speech codes at public universities are outrageously unconstitutional — like, not even a little bit constitutional. Or as Kelly Sarabyn from the Foundation for Individual Rights in Education (FIRE) points out:
Here are the citations for cases the comment’s author and editors missed: Dambrot v. Central Michigan University, 55 F.3d 1177 (6th Cir. 1995) (declaring university discriminatory harassment policy facially unconstitutional); College Republicans at San Francisco State University v. Reed, 523 F. Supp. 2d 1005 (N.D. Cal. 2007) (enjoining enforcement of university civility policy); Roberts v. Haragan, 346 F. Supp. 2d 853 (N.D. Tex. 2004) (finding university sexual harassment policy unconstitutionally overbroad); Bair v. Shippensburg University, 280 F. Supp. 2d 357 (M.D. Pa. 2003) (enjoining enforcement of university harassment policy due to overbreadth); Booher v. Board of Regents, 1998 U.S. Dist. LEXIS 11404 (E.D. Ky. Jul. 21, 1998) (finding university sexual harassment policy void for vagueness and overbreadth); The UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991) (declaring university racial and discriminatory harassment policy facially unconstitutional); Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (enjoining enforcement of university discriminatory harassment policy due to unconstitutionality).
So yeah. Just a quick question: I know I’m not a fancy Harvard Law student, but uh … How the fuck did the Harvard Law Review miss all that? Oh right, because their argument is 100% ideological and has absolutely no basis in reality! Or in more eloquent terms:
How can you write a scholarly article about speech codes without acknowledging the unanimous case law? But the truth of the matter is that there is simply no credible constitutional argument for speech codes — at least no credible argument that relies on historic free-speech jurisprudence, controlling precedent, or the fundamental nature of the public university. The only real argument is ideological. So the speech code’s ideological defenders are left doing just what the students at the Law Review did — try mightily to pound the square peg of workplace harassment concepts into the round hole of the university’s marketplace of ideas.
You want to know where that excerpt is from? (No, you don’t.) The National Review Online’s Phi Beta Cons. I’m serious. And I’m embarrassed. I’m embarrassed I have to read Phi Beta Cons — a blog I usually visit when I want a good chuckle — to find a smidgen of reason regarding speech codes. Yoo-hoo? Where are you, ‘progressives’? Hello?
Honestly, what are people so afraid of? That without speech codes hoards of secretly sexist/racist/homophobic college students are going to come out of the woodwork and take over? Yes, there are literally thousands of racist sleeper cells in every college and university in America. They are just waiting for a ripe time to rise up and impose academic apartheid! They are like the Al-Qaeda of intolerance! OH NOES!
You would think freedom of expression would be considered particularly sacred in academia, where presumably ideas are dissected and engaged on an academic level — you know, the whole ‘marketplace of ideas’ concept.
Think again, asshole!