Academic Exchange Quarterly     Fall   2006    ISSN 1096-1453    Volume  10, Issue  3

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Hate Speech: Implications for Administrators

Diana Bruns, Ph.D., is an Associate Professor and Department Chair of the Criminal Justice Program at Bacone College in Oklahoma

Jeff W. Bruns, Ph.D., is an Associate Professor and Dean of the School of Business at Bacone College in Oklahoma.

Abstract

Both educators and students alike expect colleges and universities to be realms for freedoms of expression in the pursuit of knowledge. However, increasingly during the past several decades those freedoms of expression have created both tensions and legal disputes regarding when those freedoms of speech are perceived to be hate speech. Suggestions and implications for academic administrators are offered in an attempt to aid in allowing those within academic environments to express different views, while cultivating a climate that is both enriching to and supportive of students.

“Campus hate speech policies represent only two percent of the solution. The other ninety-eight percent should include education about diversity and setting and articulating values”

--Mary Rouse, 1991

Introduction

Hate speech is a volatile issue that is markedly influenced by legal precedent and issues of protection under the First Amendment (Downey & Jennings, 1993). Defined as “words that are used as weapons to ambush, terrorize, wound, humiliate, and degrade” (Cowan, Resendez, Marshall, & Quist, 2002, p. 248), hate speech has become an interesting topic and a major issue on college campuses that has emerged in the past fifteen years. Hate speech dilemmas are not just isolated to college campuses, as society in general has been trying to confront and resolve related problems with little success. It does not help that there is no uniform code pertaining to hate speech; each state can include or exclude different areas or content that it deems appropriate. Many states include some provision that specifies race, ethnicity and religion as protected classification. However several states do not (i.e. Texas and South Carolina) (Boeckmann & Turpin-Petrosino, 2002). Hate speech is a multi-faceted form of speech, one which includes, but is not limited to flyers, written messages on chalkboard, t-shirt messages, and computer screen savers. Kaplan (1992) adds that hate speech takes other forms: Face-to-face confrontations, shouting from a crowd, leaflets, phone calls, or jokes broadcasted on campus radio stations, or via symbols such as swastikas.

Colleges across the nation are assumed and understood to be havens for freedom of inquiries. There frequently appears to be a ‘give and take’ tension between freedom of speech and the possible harm of allowing hate speech to exist (Cowan & Khatchardourian, 2003). Students come to college with expectations that they should have the freedom to pursue an education without being harassed or distracted by humiliating comments related to their ancestry, physical attributes, or personal or sexual preferences. Higher educational institutions are also considered arenas in which people can express their views and opinions. Furthermore, the educational environment involves academic freedom for students and faculty. Of utmost importance, a democracy depends on the discovery of the truth and freedom of speech. Free speech allows academic environments to express different views and attempt to establish knowledge.

Universities and colleges across the country have become highly sensitive to racial, gender, and related issues and formulated policies in attempts to respond to those issues (Heiser & Rossow, 1993). Throughout the 1980s and early 1990s, administrations at institutions of higher education enacted ‘hate speech codes’ to selective words and actions that would be considered hate speech, and applied punishments for violating those codes. The idea was to try to stop the flow of what was considered to be a stream of racist incidents on college campuses (McMurtrie, 2003). In response to this rise of hate speech incidents on college campuses many institutions have instituted new regulations banning expressions of racist sentiment. Many institutions have only regulated things that are judicially approved, such as fighting words. However, some institutions have tried to regulate any type of speech that might offend any particular group or sub-group (Heiser & Rossow, 1993).

Countless institutions have tried to restrain hateful speech and similar practices, which resulted in legal disputes and contests from those who perceived their rights to freedom of expression to have been violated. With the added public relations pressure and court cases, many institutions started to turn away from their established speech codes (McMurtrie, 2003). As case law will show, the resulting policies caused the institutions to violate first and fourteenth amendments to the constitution. Several of the policies were challenged in court (Doe v. University of Michigan, UWM Post v. University of Wisconsin, Dambrot et al. v. Central Michigan University, Corry et al. v. Stanford University) and each was deemed to be overbroad, vague, and an impermissible viewpoint restriction (Gould, 2001; Delgado & Yun, 1994).

The University of North Carolina – Chapel Hill prohibits speech that might be deemed to impact an environment of tolerance and mutual respect. Cornell University states that leering (or making contact with someone for an excessive amount of time) is a form of harassment. The policies are so broad in nature which may lead to them being enforced in a subjective manner (Lehrer, 2003).

Terms Relevant to Hate Speech

1. Hate speech: Kaplan & Lee (1995) defined hate speech as an

“imprecise catch-all term that generally includes verbal and written words and symbolic acts that convey a grossly negative assessment of particular persons or groups based on their race, gender, ethnicity, religion, sexual orientation, or disability. Hate speech is thus highly derogatory and degrading, and the language is typically coarse. The purpose of the speech is more to humiliate or wound than it is to communicate ideas or information” (p. 509).

Hate speech is usually highly derogatory and tries to degrade the person or persons it is intended to harm. The language is typically coarse as it is an attempt to humiliate or hurt more than it is to communicate ideas or information.

When hate speech is directed at a particular individual, it can cause real harm to that person. The incident can last long after the original confrontation ends (Boeckmann & Turpin-Petrosino, 2002).

Glenn & Stephens (1997) defined hate speech as

“verbal or symbolic expression, which is intentionally or recklessly abusive, directed at individuals or members of identifiable groups and describing them in terms conventionally regarded as derogatory or injurious” (p. 350).

The glaring issue encapsulated in hate speech terminology, “lies in the balance between student’s free speech and press rights and having important implications for both academic freedom and equal educational opportunity for students” (Kaplan & Lee, 1995, p. 509).

2. Fighting Words: Offensive or derogatory words which, when spoken and targeted at particular individuals will innately incite an instantaneous violent reaction (McMurtrie, 2003).

3. Chilling effect: The effect on protected speech due to prior restraint or potential reprimands stated in policies (Cowen, Resendez, et al., 2002).

4. Overbroad: This term is used by the courts to illustrate the broadness of policies that regulate or prohibit protected and unprotected speech (McMurtrie, 2003).

5. Vague: A term which “may be considered vague if men of common

intelligence must necessarily guess at its meaning and differ as to its application” (Glenn & Stephens, 1997, p. 4).

Implications for Administrators

The U.S. Supreme Court through various decisions has expressed four principles relating to free speech. The court has held that the government cannot restrict or regulate the content of a speech or speaker’s message. The second provision states that emotional content as well as cognitive content of speech is protected from government regulation. The third principle states that speech may not be prohibited merely because a person hears or views it and is offended by the message. The last principle is that the government may not regulate speech activity with regulations that are either overbroad or vague and would therefore stop someone else’s free speech. Institutions can regulate time, place and, manner but not the content of a speech (Kaplin & Lee, 1995).

In attempts to create policy to address this issue, universities have amended student code handbooks to restrict or regulate hate speech on campus. At any time when an institution of higher education undertakes the regulation of speech, a First Amendment issue is raised. Regarding public versus private institutions, First Amendment issues may arise when a public institution attempts to regulate speech, whereas policy questions may arise when private institutions attempt to regulate hate speech (McMurtrie, 2003; Kaplin & Lee, 1995).

The hate speech problem has presented some potentially complicated dilemmas for administrators on American colleges and university campuses. Kaplan & Lee (1995) asserted that there are five principles, which serve as a litmus test, relating to free speech that have emerged from hate speech cases pertaining to higher education:

1. “Above all else, the first amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content” (p. 513).
2. Free speech is a protection from governmental regulation pertaining to

emotional content.

3. “Government may not prohibit the expression of an idea simply because

society finds the idea itself offensive or disagreeable” (p. 513).

4. Free speech is a principle that is often the language used to measure

institutional policies. This addresses provisions in language that are considered vague. The threat of consequences infringes on the exercise of free speech and has a chilling effect on a person’s speech.

5. In addressing an institution’s ability to regulate fighting words, the

institution must take an all or nothing approach: All fighting words must be

regulated or none at all.

Elements in the Policies Relating to Hate Speech

Free speech is restricted under four circumstances to efficiently and effectively run institutions. Institutions of higher education can enforce limits on the classroom topics and content such as a professor imposing subject matter restrictions. Second, a professor/instructor can mandate that students act toward one another with respect. Professors have the ability and right to ask a student to leave the classroom if a student uses offensive language towards another. Next, the professor/instructor may limit the value of work in the classroom by judging the excellence or lack of it in grading students’ work. The last criterion involves the safeguarding of exchanges of ideas; differing views and opinions may be expressed, some that may go against the grain of societal views. Although some statements or views may not be met with support, ideas should be safeguarded.

Options Available to Campus Administrators

Campus administrators have a difficult line to walk as it relates to working efficiently and effectively with the diverse cultures and sub-cultures on college campus today. They need to focus on taking a more proactive approach to educating everyone on campus as to the differences between cultures. At Bacone College all students must take a class on American Indian Studies, thereby helping them understand some aspect of Native American culture. Secondly, the administration needs to ensure that they safeguard and support free speech on an equal footing with protection of equality and cultural sensitivity. In addition, the administration must concentrate on the conduct and not the speech. When an incident occurs on campus, the president needs to express his/her disapproval while conveying to everyone that the behavior is unacceptable; ultimately, an open discussion of the foundation for the behavior should be discussed (Munitz, 2001; Shiell, 1998).

Arizona State University faculty and administration has rejected any speech codes or punishments that might result in certain types of speech. The concept is to encourage an open discussion of the foundations for such speech (racial, gender, sexual, etc.) and thereby allow the faculty to establish multi-cultural courses that examine the reasons for such behavior. This type of discourse of ideas has allowed great openness within the campus community and has permitted all involved to try and understand that there are those different from themselves (Strossen, 1997).

Upon implementing policy, campus administrators must ensure the safety and fundamental civil rights of students. Furthermore, students must be advised via policy manuals that there are penalties or consequences for both their actions and speech. Administrators must take the principles of students’ rights to free speech and equal protection under the Fourteenth Amendment to the U.S. Constitution in account when implementing any speech code.

Other considerations must be taken into account:

• Who may be affected by the policy on the basis of race, sex, ethnicity, etc.?
• Are both faculty and students to be included in the policy?
• Does it extend to off-campus activities?
• How will the policy be enforced?
• What sanctions will be included? (Downey & Jennings, 1993).

Boeckmann & Turpin-Petrosino (2002) and Banning (1989) stipulated that policies should be supportive of students who belong to minority groups, sanction illegal behaviors, and educate students about diversity.

One particular remedy for individuals who are targets of hate speech is Title VII of the Civil Rights act providing limitations on various forms of harassment on college campuses. Another option that administrators should attempt to promote is one in which policies set a tone of understanding and acceptance in the campus environment.

Robert O’Neil, a president emeritus of the University of Virginia, suggested that the fighting words doctrine should replace unclear polices on discrimination. He asserted, “this doctrine is a loophole created by the Supreme Court to leave some forms of speech (face to face insults, lewd and obscene language which may cause an act of violence) unprotected.” O’Neil (1990) also suggested two other policy options which have been attempted at several institutions: Anti-discrimination codes that assimilate equal educational opportunity laws barring physical discrimination which narrowly describe types of verbal behavior, and intentional infliction of emotional distress which attempt to equate racial discrimination with tort law.

When hate speech policies are being considered, institutions should foster comprehensive approaches and perspectives on the problem; both regulatory and non-regulatory options should be considered, and policies should be adapted to particular circumstances on campuses (Cowan & Khatchardourian, 2003; Kaplin 1992).

Colleges and universities are established for the pursuit of knowledge and truth. The administrators have an obligation to foster and promote this learning environment with a tolerance for different views. This tolerance for diverse views is essential to learning. The elimination of hate speech and the protection of free speech do not need to be mutually exclusive. The point of equilibrium will only be found when all speakers have been given an opportunity to express their beliefs and then an open discussion of those values are examined and studied.

References

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Boeckmann, R. & Turpin-Petrosino, C. (2002). Understanding the harm of hate crime. Journal of Social Issues, 58(2), 207-225.

Cowan, G. & Khatchardourian, D. (2003). Empathy, ways of knowing, and interdependence as mediators of gender differences in attitudes toward hate speech and freedom of speech. Psychology of Woman Quarterly, 27, 300-308.

Cowan, G. & Resendez, M. & Marshall, E. & Quist, R. (2002). Hate speech and constitutional protection: priming values of equality and freedom. Journal of Social Issues, 58(2), 247-263.

Delgado, R. & Yun, D. (1994). Pressure valves and bloodied chickens: An analysis of paternalistic objections to hate speech regulation. California Law Review, 82, 871-892.

Downey, J. & Jennings, P. (1993). Insights and implications of campus hate speech. Paper presented at the Annual Meeting of the National Association of Student Personnel Administrators. Boston, MA.

Glenn, R. & Stephens, O. (1997). Campus hate speech and equal protection: Competing constitutional values. Widener Journal of Public Law, 6, 349-360.

Gould, J. (2001). The precedent that wasn’t: College hate speech codes and the two faces of legal compliance. Law & Society Review, 35(2), 345-392.

Heiser, G. & Rossow, L. (1993). Hate Speech or Free Speech: Can Broad Campus Speech Regulations Survive Current Judicial Reasoning? Journal of Higher Education 22, 139-154.

Kaplan, W. & Lee, B. (1995). The Law of Higher Education. 3rd ed. San Francisco, CA: Jossey-Bass Publishers.

Kaplin, W. (1992). A proposed process for managing first amendment aspects of campus hate speech. Journal of Higher Education 63(5), 517-538.

Lehrer, E. (April – May, 2003). Another result of racial politics on campus: Unfree speech. The American Enterprise, 14(3), 40-43.

McMurtrie, B. (2003). War of words. Chronicle of Higher Education, 49(37), A31-33.

Munitz, B. (2001). California state university system and first amendment rights to free speech. Education, 112(1), 4-9.

O’Neil, R. (1990) The pitfalls of stifling campus speech. AGB Reports 32(1), 12-14.

Shiell, T. (1998). Campus hate speech on trial. Lawrence, KS: University of Kansas Press.

Strossen, N. (Summer, 1997). Why the American civil liberties union opposes campus hate speech codes. Academic Questions. 33-39.