The Chronicle Review

Civility and Sex Speech

Pat Kinsella for The Chronicle Review

June 17, 2013

As rhetorical periods go, the current moment in American life counts as the Neolithic "You Lie!" Era, when even the president, formally addressing Congress, or lecturing the National Defense University on major issues of terrorism, can't dodge the outbreak of uncivil discourse—in his case (and that of the first lady recently), hecklers who just won't shut up.

The phrase "uncivil discourse" captures a mix of bad manners, disrespect, simplemindedness, interruption, and insistent disagreement favored by, among others, cable-TV hacks, dogmatic politicians, and sanctimonious activists. By contrast, academics, traditionally among the most dignified and well-mannered of professionals, react powerfully against the food-fight spirit of the times, or as powerfully as they know how—they write books bemoaning the spread of incivility.

In one stellar example, The Importance of Being Civil: The Struggle for Political Decency (Princeton University Press, 2013), McGill sociologist John A. Hall provides an incisive, overarching historical and philosophical justification of civility's value. In another, The Spirit of Compromise: Why Government Demands It and Campaigning Undermines It (Princeton University Press, 2012), University of Pennsylvania President Amy Gutmann and Harvard political philosopher Dennis Thompson urge us to get our deliberative discussions right and bring them to sensible conclusions.

Allowing students to speak without fear, without concerns about sanction, provokes divergent voices and changes minds.

Civil discourse, for its part, connotes an open-minded welcome to a wide diversity of opinion, including comments that may offend one group or another. But as free-speech activist Greg Lukianoff, president of the Foundation for Individual Rights in Education, points out in his daily work, many American academic institutions continue to stifle civil discourse through erratically enforced speech codes, "free-speech zones" (Texas Tech offered a gazebo), and general hostility to any free speech that might cause offense.

Those eager for the big picture should consult Lukianoff's underappreciated Unlearning Liberty: Campus Censorship and the End of American Debate (Encounter Books, 2012). While providing plentiful capsule descriptions of foolish administrative actions against free speech on campus, Lukianoff, a Stanford Law graduate, also disabuses the reader of a falsehood about FIRE that dogs the organization: that it's a right-wing protector of conservative minorities on campus. In fact, the dual founders of FIRE in 1999 were Harvey Silverglate, the prominent Boston civil-liberties lawyer, and Alan Kors, the libertarian University of Pennsylvania historian. Lukianoff himself, who tracks every attack on academic free speech, explains in the book that he's a liberal Democrat who believes "passionately" in "gay marriage, abortion rights, legalizing marijuana, and universal health care." FIRE, examined from a nonpartisan angle, looks very much like a nonpartisan defender of the First Amendment, presumably still a nonpartisan pillar of American life and law.

One worrisome anti-First Amendment development flagged last month by FIRE demands attention: the continuing assault by the Education Department's Office for Civil Rights on campus free speech related to sex. The bureaucratic trend invites reflection, amid the explosion of thoughtful pro-civility books, on the logic that connects "civil discourse" and sex talk.

In Unlearning Liberty, Lukianoff traces the position of the Office for Civil Rights on federal harassment regulations, which it formulates and enforces.

Ten years ago, he reports, the office declared that "no OCR regulation should be interpreted to impinge upon rights protected under the First Amendment." To constitute illegal harassment, the activity or activities in question "must include something beyond the mere expression of views, words, symbols, or thoughts that some person finds offensive." The letter also stated that "OCR's standards require that the conduct be evaluated from the perspective of a reasonable person in the alleged victim's position, considering all the circumstances, including the alleged victim's age."

But OCR's position changed. In April 2011, it issued a 19-page letter full of procedural guidelines for sexual-harassment and -assault cases. Making no mention of the First Amendment, the office directed that such cases be adjudicated by what Lukianoff describes as "the lowest possible standard of evidence allowable in court"—a "preponderance of evidence." It also dictated a form of double jeopardy for those accused of harassment or assault, requiring campus judicial procedures to offer accusers a right of appeal if the accused has one.

Most recently, Lukianoff reports, OCR retreated even more from its 2003 position. On May 9, it sent the University of Montana a so-called "findings and resolution agreement" letter, written with the Department of Justice. The letter, which followed an investigation into the university's procedures involving sexual assault, described its own contents as "a blueprint for colleges and universities throughout the country." In that letter, says Lukianoff in a May news release, the government "mandated a breathtakingly broad definition of sexual harassment that makes virtually every student in the United States a harasser, completely ignoring the First Amendment."

The OCR letter stated that "sexual harassment should be more broadly defined as 'any unwelcome conduct of a sexual nature,'" including "verbal conduct." It then explicitly asserted that an alleged harassing expression need not be offensive to an "objectively reasonable person of the same gender in the same situation." In other words, Lukianoff explains, "if the listener takes offense to sexually related speech for any reason, no matter how irrationally or unreasonably, the speaker may be punished."

In Lukianoff's view, under these new OCR definitions, "any expression related to sexual topics that offends any person" can make the speaker vulnerable. That might include "a presentation on safe sex practices," any "sexually themed joke overheard by any person who finds that joke offensive for any reason," and "any request for dates or any flirtation that is not welcomed by the recipient of such a request or flirtation."

On May 29, OCR issued a statement in response to widespread criticism of the May 9 letter and agreement. But, according to Lukianoff, the newest statement is likely to increase the confusion, with several contradictions of the May 9 language and a dubious claim that the new directives are consistent with previous agency guidelines.

Now here's the funny thing about civility. Often we—and, apparently, OCR—think of it as niceness, politeness, inoffensiveness. But that's not what it is at all, and particularly not in regard to sex. If sex talk is to rise to "civil" discourse in the broad, philosophical sense of civility that Hall, in The Importance of Being Civil, superbly delineates—a discourse that obviates violence—it needs to be "uninhibited, robust, and wide-open," in the famous phrase from Justice Brennan's majority opinion in New York Times Co. v. Sullivan.

My own finding, having taught 63 students this spring in two sections of "The Philosophy of Love and Sex," is that the connective logic between civility and sex talk really hits home. In his book, Hall explains the conceptual back story.

Civility, he contends, is "an ideal of visceral importance," with elements of "manners, polish, self-command, and calm," but "not sugary froth." It weds cooperation with the state and respect for individuals. Civility "does not stand in the way of truth and moral development, but is rather a precondition for them." It is "important because it allows disagreement to take place without violence."

That last line contains the first hint of the welcome flintiness Hall finds in civility: its virtue as a safety valve for aggression. It takes toughness, after all, to bear criticism, offense, and even ridicule while remaining calm. That tough calm is a way to "manage diversity" and defuse potential mayhem.

As such, it needs, like democracy and freedom, to be fought for: "Civility is not something cast in stone, not the necessary unfolding of the logic of social revolution." It "needs care and attention if it is to be maintained." Its greatest philosophical tribune remains Montesquieu, whose wide-ranging skepticism in The Persian Letters provides a model of genial, sophisticated uncertainty.

Although Hall almost always discusses his prized virtue in political contexts—between states, within states—it applies just as well to what a political conventioneer might declare "the great state of sexuality," where all the different constituencies—heterosexuals, gays, transgendered, fetishists of every stripe—must get along. Hall's chief transferable aperçu is that civility defuses tension, creating stability. It depends on political openness and participation and an "absolute intolerance for extremists."

Over the spring, listening to my students debate gay marriage, prostitution, polyamory, monogamy, loyalty, love at first sight, and enough fetishes to shock a stadium full of anxious parents, I came to understand something crucial: Allowing students to speak without fear, without concerns about being immediately sanctioned (as opposed to criticized) for a bad choice of words, or unpopular conviction, or dumb joke, provoked divergent voices and changed many minds.

Such a classroom environment does not come naturally after a long period of political correctness made "feeling comfortable" on campus a more crucial value than being challenged. A 2010 study by the Association of American Colleges and Universities found that only 30.3 percent of college seniors agreed with the statement, "It is safe to have unpopular views on campus." For faculty, the sad number was 16.7 percent, the lowest of any group.

Civility in sex talk does not require avoidance of offense, but rather tolerance of individual freedom and even eccentricity. It does not encompass the drunken and invasive sexual oafishness of the Slippery Rock University professor slapped down by a Pennsylvania appeals court this month or the alleged e-mail harassment of a research assistant by philosophy professor Colin McGinn, which has led to much online commentary and his coming resignation from the University of Miami. Both of those cases reportedly involve repeated, unwanted impositions of a professor's sexual desires on uninterested parties—one proper target of harassment law.

In contrast, supposed classroom civility that suppresses edgy voices is not civility, but repression with a smooth surface, which can trigger anger and violence (catcalling, gay-bashing, rape, and more). Unbridled conversation and readings change minds. Martha Nussbaum's precise analytic dissection of prostitution in the context of other traditional women's work convinced a surprising number of my students that they should support legalized prostitution. Mary Roach's hilarious, info-packed Bonk turned many of them deeply introspective about the physical preconditions of sex. The dignity and force with which a number of openly gay and transgender students challenged other students and their professor altered and softened, I believe, initial inclinations toward intolerance on the part of some.

The OCR commissars think the healthiest campus sexual environments are those in which everyone—students, professors, staff—walks on eggshells. May Greg Lukianoff continue to monitor and confront them.

One of my students commented at the end of the term: "Thank you for making the class feel so safe for discussing these difficult subjects." I wish I could thank my government for encouraging the same feeling.

Carlin Romano, critic at large for The Chronicle, is a professor of philosophy and humanities at Ursinus College and the author of America the Philosophical, just out in Vintage paperback.