Professors at the University of Wisconsin here do not regularly sling epithets at their students. Nonetheless, Madison is prepared: It has a speech code in place to punish faculty members who make offensive remarks in the classroom.
Now the university is moving to narrow the code, a decade after broadening it to make it tougher on professors. Some of them praise the latest move as a symbol of academe’s emergence from an era of political correctness.
Madison has long had a reputation as a place where P.C. flourished, partly because of its willingness to adopt policies that restrict speech. Wisconsin’s university system was among the first to develop a “hate speech” code in the late 1980s, prohibiting students from making derogatory remarks. A federal judge struck down that policy as unconstitutional in 1991, but the faculty speech code at Madison, established in 1981, remained intact.
The university, like many others, restricts faculty speech as part of its rules banning sexual harassment. But few campuses have regulations as extensive as Madison’s.
Not a single professor has been formally investigated and disciplined under the code, but several professors have been informally investigated following allegations that they made offensive remarks. They and many others here argue that the mere presence of the code has hampered their ability to speak freely.
This week, a panel of 17 professors, administrators, and students, which spent a year rewriting the policy, was to issue its report. The committee wants professors to feel free to teach controversial subjects, even if some students are insulted in the process.
The revised code is “an acknowledgment that there are lines, and a faculty member can transgress,” says Donald A. Downs, a professor of political science who helped to write the proposed changes. But to merit punishment, he says, a professor’s remarks “should be more than thoughtless and insensitive. They should, at the least, be harmful and derogatory.”
If the Faculty Senate accepts the revisions at its November meeting, Mr. Downs says, “it will be one of the first cases of faculty, rather than courts, cutting back on the regime of speech codes on an American campus.”
The panel’s members agreed on some major points: First, the speech code should pay more attention to academic freedom. The current language makes no mention of the concept, while the revised code devotes an entire preamble to it. Second, penalties should be reserved primarily for professors who use slurs that “demean” individual students based on their gender, race, religion, ethnicity, sexual orientation, or disability. Under existing policy, students who are offended simply by the presentation of a theory involving race or religion, for example, can now accuse the professor of violating the code.
The current code’s supporters say it hasn’t caused problems on the campus. “I would have been perfectly content to leave things as they were,” says Ted Finman, an emeritus professor of law, who helped write the code 17 years ago.
Still, he acknowledges that the policy is vague, and may give too much power to students to decide what kind of speech is offensive. He and other liberals on the speech-code committee agreed to narrow the language -- but not as much as conservative members would have liked. Mr. Finman’s side eventually won a majority, but a minority of the panel has proposed an alternative that could spark a lively debate before the Faculty Senate.
Just because the code has never been used as a sledgehammer to keep professors in line doesn’t mean that students haven’t complained about instructors’ comments over the years. One student said a professor had mocked Asian students’ speech and looks. Another student accused a professor of advising black students to seek less-rigorous fields of study. The university receives only a couple of such complaints each year.
The complaints have been dealt with, informally, through the university’s Equity and Diversity Resource Center. Administrators haven’t considered the comments egregious enough to invoke formal disciplinary procedures. In most cases, the accused professors said they were unaware that their remarks were offensive, and agreed to be more sensitive to such matters.
Roger Howard, associate dean of students at Madison, says a speech code is important to have in writing, even if it is rarely used. “You’re trying to find a way to deal with the most extreme cases,” he says. “That’s all these codes will ever do. You’re also trying to send out a signal to faculty, students, and staff about the kind of place we want to live in.”
Students who are uncomfortable in a classroom because of insensitive remarks about their race or gender have a difficult time learning, he adds.
But some professors here complain that they should not be afraid to say what they think in the classroom. Even raising the possibility that faculty members can be punished for their speech chills discussion both in and out of class, they contend. What’s more, professors who have been the subjects of the university’s “informal” investigations say the procedure is far from innocuous.
It was just such an investigation of one professor that led some here to question the speech code loudly enough to prompt the formation of the committee that has rewritten it. In the fall of 1995, the history department began looking into charges that Robert Eric Frykenberg had made disparaging comments to female graduate students in the department’s South Asian-studies program. They said he had told them to act demurely in job interviews, and had advised them that an academic career did not mix well with having a family.
Mr. Frykenberg, who had taught at the university for 34 years, has adamantly denied making the comments, and has contended that in any event, they wouldn’t have amounted to discrimination. Still, the history department pursued an investigation for nine months, never telling him precisely which university rule he allegedly had broken. The inquiry ended after Mr. Frykenberg hired a lawyer and threatened to sue. The university agreed to pay his $12,000 legal bill.
Mr. Frykenberg, who has since retired, doesn’t want to say much about the investigation because his settlement with the university forbids further comment. But he calls the faculty speech code “the hidden dragon under the surface,” and says its very presence gave people at the university license to investigate flimsy charges that tarnished his reputation.
In the wake of that case, a colleague in the history department, Stanley G. Payne, formed the Faculty Committee on Academic Freedom and Rights in 1996. Its 20 members say they defend professors whose academic freedom has been threatened. The group has received $100,000 from the conservative Bradley Foundation.
The speech code enforces a leftist political orthodoxy, Mr. Payne says. “This helps to guarantee that no one will very seriously question any P.C. proposition.” The code, he adds, “doesn’t need to be invoked to police discussion in the classroom.”
Mr. Downs, the political-science professor who helped write the new speech code, is a member of Mr. Payne’s committee. He says he became concerned about the code because of the Frykenberg case and an earlier one involving Lester H. Hunt, a professor of philosophy. In 1992, an American Indian student accused Mr. Hunt of discrimination for using the word “injuns” during a private discussion with her. The professor, who said he did not consider the word offensive, nevertheless wrote a letter to the woman at the university’s recommendation, saying he was sorry he’d insulted her.
Mr. Hunt, who teaches classes on political philosophy and contemporary moral issues, says he “considered dropping anything controversial from my courses” once the investigation was over. But in the end, he decided to do just the opposite. He joined forces with Mr. Downs and, in 1996, brought Alan M. Dershowitz to Madison for a speech, in which the Harvard University law professor denounced the faculty speech code.
Mr. Hunt and Mr. Downs also pressured the University Committee -- six professors who sit atop the faculty-governance structure -- to take another look at the code. In May 1997, the committee appointed 10 faculty members, four academic-staff members, and three students to an Ad Hoc Committee on Prohibited Harassment Legislation, and asked them to determine whether the speech code “interfered with the free flow of ideas in the classroom.”
Charges that the code might be infringing on free speech disturbed members of the University Committee. Academic freedom is a prized principle throughout higher education, but it has played a particularly prominent role on this campus. More than 100 years ago, an economics professor named Richard T. Ely was accused by a member of the Board of Regents of teaching socialism and other “dangerous” theories. The regents held a hearing, exonerated Mr. Ely, and issued what has become a famous statement here on academic freedom.
The statement was cast into a large bronze plaque that was placed at the entrance to Bascom Hall, the main administration building. “Whatever may be the limitations which trammel inquiry elsewhere,” the plaque reads, “we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found.”
Over the years, that encouragement has attracted lots of students and professors, who have hoped that the campus will live up to the promise. In some ways it has. On the sidewalks outside Bascom Hall this fall, debates about abortion, global warming, and other touchy topics are waged in pink, yellow, and blue chalk: “Pro Child, Pro Choice. Protect the Right to Choose,” and “Not an Abortion. Don’t Have One.” Although graffitti wars are officially forbidden, the university usually looks the other way.
Phillip R. Certain, dean of the College of Letters and Science, says Madison has gotten a bad rap “for being an extremely P.C. university.” He and Mr. Finman, the law professor who wrote the original speech code, served as ex officio members of the panel that has proposed a new version. “The fact that a committee grappled with these issues for over a year in an extreme atmosphere of collegiality shows that claims of our being an oppressive place of politically correct thinking are just a bunch of baloney,” says Mr. Certain.
While the committee’s debates did remain civil, its proceedings were laced with difficulties. The 17 voting members came to agree on most matters, but they remained divided over whether a particular type of comment made by a professor to a student should constitute grounds for punishing the professor.
The members agreed that professors should be allowed to talk about controversial topics in the classroom. In a course dealing with race, gender, and intelligence, for example, an instructor should be able safely to tell students that he agrees with scientific claims that men are smarter than women. But the professor could run afoul of the code if a female student in his class challenged his statements and he shouted back: “See! Your stupid female comments just prove my point.” According to a report the committee issued: “This is a comment addressed to a specific student that clearly derogates and debases that student on the basis of her gender.”
The committee split over whether professors should be allowed to personalize their views as long as they didn’t make nasty comments. For example, the female student might ask the professor whether, based on the theory, he believed that she was less intelligent than the male student sitting next to her. A majority on the speech-code committee said the professor would be crossing the line if he said Yes. In the end, the panel voted 10 to 7 to accept that limit on a professor’s expression.
Carin A. Clauss, a professor of law, voted with the majority. She says a faculty member who is asked such a pointed question by a student should simply respond: “I’m not talking to you personally. I’m talking about the group to which you belong.”
Ms. Clauss says it is important for professors to avoid alienating women and members of minority groups. According to the committee majority’s position, a faculty member should not use a controversial comment or line of argument if the professor can think of another one that is less offensive. “If you’re going to take your money as a teacher, you have an obligation to students as well as to the advancement of knowledge,” she says.
Stanlie M. James, an associate professor of Afro-American and women’s studies here, also was in the majority. She says she has talked privately with black students and with women who have felt uncomfortable with some professors’ comments. Faculty members, she says, must police their own behavior. “We are in a position of power,” she explains. “Students need a grade and recommendations. They’re not willing to jeopardize their careers” by challenging a professor’s views.
But the three students who served on the speech-code committee said professors on the panel didn’t give undergraduates enough credit. All of the students -- a white woman, an Asian woman, and a gay man -- voted with the minority on the panel to take a broader view of free speech.
“I don’t think there should be any boundaries to what goes on in the classroom,” says Amy Kasper, a first-year law student who served on the committee. Ms. Kasper, who was born in South Korea and was adopted by white parents as a baby, finds faculty members’ attitudes condescending. “Are they saying I can’t stand up for myself? Am I being wrapped in a security blanket here, and I’ll go out in the real world and find there isn’t one?”
Jason Shepard, a senior majoring in journalism and political science, was one of the most outspoken members of the speech-code committee. He worries that any effort to censor professors could someday be used to silence people like him. He is gay, and he says he wants to hear what professors believe, even though he may find their remarks painful.
The three students on the speech-code panel say professors should be penalized only for intentionally using slurs to harm a student. Four other members sided with them, including Mr. Downs, the political-science professor, and the committee’s chairman, Robert E. Drechsel, a professor of journalism and mass communication. Together, they sent a minority report to the Faculty Senate. It is unusual for such a committee to split, and no one is sure what the Faculty Senate will do at its November meeting.
In any event, history will take notice. This year, an economics professor at Madison produced a book about the tradition of free speech on the campus. Academic Freedom on Trial, published by Madison’s Office of University Publications, traces the history of academic freedom from 1894, when Professor Ely was investigated for his teaching, through the university’s adoption of hate-speech codes almost a century later.
The latest chapter of the university’s relationship with academic freedom is still being written.
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