Spring Break
Professor criticizes speech code
By: Abid Mujtaba
Issue date: 12/4/07 Section: News
Proposed revisions to Section 31 - Racial and Ethnic Harassment - of the Student Rules will come up for review next week in the Faculty Senate where they are expected to meet opposition from certain faculty members.
The revisions were drafted by a subcommittee of the Faculty Senate's Rules and Regulations Committee in response to racially motivated incidents, such as the blackface YouTube video last semester and the continuing acts of violence against international students in Northgate.
The proposed revisions were presented to the Faculty Senate in its meeting in November, where faculty members spoke against it. Most members felt that they had had too little time to deliberate over the bill and as a result the bill was tabled.
Professor of communication James Aune has been at Texas A&M for 11 years. He is a member of A&M's Faculty Senate, the American Civil Liberties Union and the Brazos Valley Civil Liberties Union.
"One of the things that I mostly study and teach is the First Amendment," - Aune said - "especially free speech. American universities began to try to deal with the problem of racial harassment, especially on college campuses in the late 80s. It is very difficult to define exactly what hate speech is, if it exists.
"What [is] the borderline between speech and action? Although all of us are certainly in favor of better racial and ethnic relations on campus, the difficulty has been to figure out what the boundaries are between acceptable advocacy of ideas and things that are in effect threats to people, [something] that is more like action."
Paul Parrish, regents professor of English, self-proclaimed activist and member of the ACLU, is undecided on the issue. He said the resolution is something that needs to be looked at carefully both by University counsel and lawyers advocating increased civil liberty.
"I would still like to look more carefully at this question of balance," Parrish said. On the one hand, the proposed changes do state explicitly, respect for and adherence to the freedom of speech, which is crucial. In many ways it is, if not the most, one of the most fundamental rights guaranteed by the Constitution.
Freedom of speech not absolute
"It has long been recognized, as the document says, [that] the right to free speech is not absolute. We use as an example the right to yell 'fire' in a crowded theater. Freedom of speech is not an absolute right that is equally available in all circumstances, to all people," Parrish said.
But in striking the required balance, he said, "As a civil libertarian, I fall on the side of freedom of speech."
Aune said the particularly troublesome phrases are in Sections 31.2 and 31.2.1.
His concern was how do we define and who will define "behavior that is so severe and pervasive and objectively offensive so as to interfere with or limit the ability of a student to participate in or benefit from" the educational program and/or experience as now stated in the revised section.
"Texas State Civil Liberties Union, while not weighing in with a formal legal judgment, has expressed concerns about the vagueness here and have encouraged us to proceed and try to get this modified," Aune said.
"What happened in the Faculty Senate meeting a month ago was that it was sprung on us very quickly. I don't think either the vice president for Student Affairs or the assistant University counsel expected a negative response," he said.
After two speeches, the second of which was a criticism by Aune, a parliamentary motion to table the resolution was made and passed. "I could tell that the vice president and the University counsel were upset, given their remarks later," he said.
"I appreciate that they are stuck between very real episodes of racial and ethnic harassment that happen on this campus and the need to protect professors' and students' rights. I don't view this is an epic battle, but I am a little puzzled [by the fact] that no one working in the University counsel's office is a constitutional lawyer. Neither is the professor, who is a lawyer, who helped draft this. So it should be a relatively simple matter for them to get an opinion from someone who deals with this consistently," he said.
Revised rule open to interpretation
Aune said the revised law might be "open to someone being offended by a confederate flag in a [professor's office], a spirited argument in the classroom about affirmative action or fundamental Islam, Christianity or Judaism. I don't feel more protected by this [resolution]."
Section 31.3 allows for students to be sanctioned even when their actions cannot be considered as 'severe' or 'pervasive' enough. "But I thought, holy cow, who makes this decision? This worries me even more when I look at it from the students' perspective."
"How much of doing this is the administration, more trying to avoid bad public relations, to remove the stigma of A&M as a conservative, white, racist University, as opposed to genuine concern to either protect free speech or protect the safety of students? I think they are more zealous about this because of some highly publicized incidents like the YouTube video," Aune said.
Political correctness motivates new law?
Parrish, however, was of the contrary opinion. He said, "There is a genuine attempt on the part of [the authors of the resolution] to get at issues and problems and real concerns about harassment and aggressive misbehavior. I don't think it derives from political correctness, [a word to which I object]. I think it derives from an honest worry of students or others being mistreated. I applaud that concern, and I fully endorse the importance of the University being responsive."
Aune said, "I think it is more a legacy of political correctness. I was talking to my students about [discussing] racial and ethnic issues, but if it was one thing, virtually all of them would say [it was] that we don't want to talk about it because we are afraid of offending someone."
"I don't trust people in upper administration to protect my rights," he said when discussing his concerns about the fallout of being vocal on sensitive issues. "This [issue] has a somewhat longer history of upper administration being worried about the public image of Texas A&M [with respect to] what faculty [might] say.
"But there are people who just don't get this, that [creating] this safe protected [environment], it turns all of us, who have at various times been victims of persecution, into victims. Are you and I so fragile? Do we need protection?" Aune said."I don't want someone not feeling safe in Northgate. That is the kind of thing we should be focusing on. That's a higher priority, protecting the physical safety of people [rather] than their tender sensibilities.
"[Having more police in Northgate] costs money. I think that is why there has been such a push for [this regulation]. It doesn't cost one cent. It looks good, it makes people feel better about themselves, and the bottom line is that historically oppressed groups are not any safer," he said.
Aune said we have pretty good empirical evidence to show that there is no positive correlation between the implementation of
anti-harassment laws and a decrease in racism.
"One of the reasons I spoke up against this resolution was our concern [personal and those of civil liberty activists] that there are aspects of this statement [the proposed law] that are so vague that they might conceivably catch what we would think of as constitutionally protected speech in the mix."
Revisions might be unconstitutional
Discussing the U.S. Supreme Court case Doe v. Michigan of 1989, when the University of Michigan's implementation of anti-harassment laws was ruled unconstitutional, he says "the two magic words are 'vagueness' and 'over-breadth.' [The proposed regulation] is not clear and you might snag protected speech in the vagueness - every court has said that."
Parrish said, "Harassment, that word, can encompass any number of objectionable actions, but it doesn't necessarily suggest violence.
"We can't get into the business of identifying speech that some of us don't like and therefore say that it can't be allowed," he said. "I am not saying that that is what is going on with these set of rules, which I know have to be very well intentioned and aimed at defending those that are potentially subject to harassment. It's just challenging territory. It doesn't mean you can't go down that road, but the farther you go down [it], laying down explicit conduct that is subject to a law, the more difficult it is to have total consent."
Parrish finds himself unwilling to oppose or propose the resolution as of yet. He said, "I really would want to understand the viewpoint of attorneys that are sympathetic to the position I hold."
I am certain that the intentions are right and good and I am sure I line up on the side of those who are urging this rule or revision on the principle that students in particular [be safe from these] kinds of activities. The question remains whether the rule strikes that [necessary] balance between principles that are crucial to the University," Parrish said.
"Universities are about freedom of expression, academic freedom [and the] freedom of speech if we are about anything," he said. "Once we give up on that, we might as well chuck it. It is why any attempt to restrict free speech needs to be looked at carefully."
The revisions were drafted by a subcommittee of the Faculty Senate's Rules and Regulations Committee in response to racially motivated incidents, such as the blackface YouTube video last semester and the continuing acts of violence against international students in Northgate.
The proposed revisions were presented to the Faculty Senate in its meeting in November, where faculty members spoke against it. Most members felt that they had had too little time to deliberate over the bill and as a result the bill was tabled.
Professor of communication James Aune has been at Texas A&M for 11 years. He is a member of A&M's Faculty Senate, the American Civil Liberties Union and the Brazos Valley Civil Liberties Union.
"One of the things that I mostly study and teach is the First Amendment," - Aune said - "especially free speech. American universities began to try to deal with the problem of racial harassment, especially on college campuses in the late 80s. It is very difficult to define exactly what hate speech is, if it exists.
"What [is] the borderline between speech and action? Although all of us are certainly in favor of better racial and ethnic relations on campus, the difficulty has been to figure out what the boundaries are between acceptable advocacy of ideas and things that are in effect threats to people, [something] that is more like action."
Paul Parrish, regents professor of English, self-proclaimed activist and member of the ACLU, is undecided on the issue. He said the resolution is something that needs to be looked at carefully both by University counsel and lawyers advocating increased civil liberty.
"I would still like to look more carefully at this question of balance," Parrish said. On the one hand, the proposed changes do state explicitly, respect for and adherence to the freedom of speech, which is crucial. In many ways it is, if not the most, one of the most fundamental rights guaranteed by the Constitution.
Freedom of speech not absolute
"It has long been recognized, as the document says, [that] the right to free speech is not absolute. We use as an example the right to yell 'fire' in a crowded theater. Freedom of speech is not an absolute right that is equally available in all circumstances, to all people," Parrish said.
But in striking the required balance, he said, "As a civil libertarian, I fall on the side of freedom of speech."
Aune said the particularly troublesome phrases are in Sections 31.2 and 31.2.1.
His concern was how do we define and who will define "behavior that is so severe and pervasive and objectively offensive so as to interfere with or limit the ability of a student to participate in or benefit from" the educational program and/or experience as now stated in the revised section.
"Texas State Civil Liberties Union, while not weighing in with a formal legal judgment, has expressed concerns about the vagueness here and have encouraged us to proceed and try to get this modified," Aune said.
"What happened in the Faculty Senate meeting a month ago was that it was sprung on us very quickly. I don't think either the vice president for Student Affairs or the assistant University counsel expected a negative response," he said.
After two speeches, the second of which was a criticism by Aune, a parliamentary motion to table the resolution was made and passed. "I could tell that the vice president and the University counsel were upset, given their remarks later," he said.
"I appreciate that they are stuck between very real episodes of racial and ethnic harassment that happen on this campus and the need to protect professors' and students' rights. I don't view this is an epic battle, but I am a little puzzled [by the fact] that no one working in the University counsel's office is a constitutional lawyer. Neither is the professor, who is a lawyer, who helped draft this. So it should be a relatively simple matter for them to get an opinion from someone who deals with this consistently," he said.
Revised rule open to interpretation
Aune said the revised law might be "open to someone being offended by a confederate flag in a [professor's office], a spirited argument in the classroom about affirmative action or fundamental Islam, Christianity or Judaism. I don't feel more protected by this [resolution]."
Section 31.3 allows for students to be sanctioned even when their actions cannot be considered as 'severe' or 'pervasive' enough. "But I thought, holy cow, who makes this decision? This worries me even more when I look at it from the students' perspective."
"How much of doing this is the administration, more trying to avoid bad public relations, to remove the stigma of A&M as a conservative, white, racist University, as opposed to genuine concern to either protect free speech or protect the safety of students? I think they are more zealous about this because of some highly publicized incidents like the YouTube video," Aune said.
Political correctness motivates new law?
Parrish, however, was of the contrary opinion. He said, "There is a genuine attempt on the part of [the authors of the resolution] to get at issues and problems and real concerns about harassment and aggressive misbehavior. I don't think it derives from political correctness, [a word to which I object]. I think it derives from an honest worry of students or others being mistreated. I applaud that concern, and I fully endorse the importance of the University being responsive."
Aune said, "I think it is more a legacy of political correctness. I was talking to my students about [discussing] racial and ethnic issues, but if it was one thing, virtually all of them would say [it was] that we don't want to talk about it because we are afraid of offending someone."
"I don't trust people in upper administration to protect my rights," he said when discussing his concerns about the fallout of being vocal on sensitive issues. "This [issue] has a somewhat longer history of upper administration being worried about the public image of Texas A&M [with respect to] what faculty [might] say.
"But there are people who just don't get this, that [creating] this safe protected [environment], it turns all of us, who have at various times been victims of persecution, into victims. Are you and I so fragile? Do we need protection?" Aune said."I don't want someone not feeling safe in Northgate. That is the kind of thing we should be focusing on. That's a higher priority, protecting the physical safety of people [rather] than their tender sensibilities.
"[Having more police in Northgate] costs money. I think that is why there has been such a push for [this regulation]. It doesn't cost one cent. It looks good, it makes people feel better about themselves, and the bottom line is that historically oppressed groups are not any safer," he said.
Aune said we have pretty good empirical evidence to show that there is no positive correlation between the implementation of
anti-harassment laws and a decrease in racism.
"One of the reasons I spoke up against this resolution was our concern [personal and those of civil liberty activists] that there are aspects of this statement [the proposed law] that are so vague that they might conceivably catch what we would think of as constitutionally protected speech in the mix."
Revisions might be unconstitutional
Discussing the U.S. Supreme Court case Doe v. Michigan of 1989, when the University of Michigan's implementation of anti-harassment laws was ruled unconstitutional, he says "the two magic words are 'vagueness' and 'over-breadth.' [The proposed regulation] is not clear and you might snag protected speech in the vagueness - every court has said that."
Parrish said, "Harassment, that word, can encompass any number of objectionable actions, but it doesn't necessarily suggest violence.
"We can't get into the business of identifying speech that some of us don't like and therefore say that it can't be allowed," he said. "I am not saying that that is what is going on with these set of rules, which I know have to be very well intentioned and aimed at defending those that are potentially subject to harassment. It's just challenging territory. It doesn't mean you can't go down that road, but the farther you go down [it], laying down explicit conduct that is subject to a law, the more difficult it is to have total consent."
Parrish finds himself unwilling to oppose or propose the resolution as of yet. He said, "I really would want to understand the viewpoint of attorneys that are sympathetic to the position I hold."
I am certain that the intentions are right and good and I am sure I line up on the side of those who are urging this rule or revision on the principle that students in particular [be safe from these] kinds of activities. The question remains whether the rule strikes that [necessary] balance between principles that are crucial to the University," Parrish said.
"Universities are about freedom of expression, academic freedom [and the] freedom of speech if we are about anything," he said. "Once we give up on that, we might as well chuck it. It is why any attempt to restrict free speech needs to be looked at carefully."
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