Time to take unconstitutional speech codes out of university student guides.
Author's Note: This column contains extremely offensive language. Keep it away from small children. Come to think of it, you should keep it away from large ones, too.
As a professor, I am asked to complete a lot of surveys. A few weeks ago, I received an email from a university administrator asking me to participate in yet another survey. The request began as follows:
As part of an ongoing review, the Office of Internal Audit is gathering information on how UNCW employees use UNCW's policies and the UNCW Faculty Handbook. You have been randomly selected to complete a survey about policies and the Faculty Handbook. Numerous individuals in each category of employment are being asked to complete the survey, and you have the option of answering anonymously. At the conclusion of Internal Audit’s review, summarized answers will be shared with management to aid management in improving UNCW's policy process.
This was an odd opening paragraph. Put simply, the university administration doesn't need information about how employees use the university's policies and handbooks. They already know the answer. They use them to trump the U.S. Constitution, particularly the First Amendment as well as the Due Process Clause of the Fourteenth Amendment.
Those familiar with the work of the Foundation for Individual Rights in Education (FIRE) and readers of my weekly column know what I am saying. Often times, there is a conflict between a university handbook policy and the U.S. Constitution. Whenever those conflicts occur, the university resolves the conflict in favor of the university handbook. It isn't that the university really considers the university handbook to be the supreme law of the land. They just resolve the conflict in their favor because they can. It is simply a raw exercise of government power.
The 2001 case that initially brought me and FIRE together is a classic example. A socialist student had the audacity to blame the attacks of 9/11 on America just four days after the World Trade Center fell. She sent her unsolicited opinion to me and then asked me to respond. I told her via email that her speech was "bigoted" and "unintelligent" and "immature" right after telling her that it was protected by the First Amendment. Fortunately for the socialist student, her mother worked at the university and was familiar with the university handbook.
Citing a provision of the handbook banning emails that "berate" others, the young commie and her mommy went to the administration demanding the university scour my email account - even to the point of reading private messages and divulging private email addresses to the offended socialist student. The request brought to a head a conflict between a) the Constitution, which allowed me to express my views without being punished (the commie and her mommy had also threatened a libel action), and b) the university handbook.
When the university caved in to the demands of the young commie (and her well-connected mommy) all hell broke loose. I went to FIRE and they went to the national press. Rush Limbaugh defended me. Neal Boortz defended me. Even Alan Colmes defended me. In the end, the university learned its lesson, right? Wrong.
In the midst of intense national scrutiny, the university modified its email policy to prevent another embarrassing episode. But for every bad policy modified, the university creates another that is guaranteed to encroach on constitutionally protected free speech. Their next handbook snafu would take the form of a "Seahawk Respect Compact." The assault on free speech was slow and deliberate - but it was an assault nonetheless. It happened in three stages:
1. Initially, asking students to voluntarily sign a respect compact promising to respect others and engage in civil discourse.
2. Next, making signing of the respect compact mandatory.
3. Finally, punishing students with expulsion after two violations of the respect compact.
To illustrate, recently one of my own students was placed on disciplinary probation for violating the Seahawk Respect Compact. His offense was using the term "bullshit" in reference to a university policy. His criticism of the policy was core political speech clearly protected by the First Amendment. But the term "bullshit" was seen as violating the student handbook, specifically the respect compact he was given no choice but to sign.
It is odd, isn't it? The university sponsors The Vagina Monologues every single year. And every single year, the play employs terms far more offensive than "vagina." The words they use are, in my view, far more graphic than the term "bullshit." So why do they pretend that profanity is banned under the respect compact? You know the answer. It is all part of an organized effort to ban criticism of the university by a) selectively applying policies from the handbook, and then b) pretending that they trump the federal Constitution.
Next semester, in my First Amendment and Crime class I plan to push back against the university's efforts to trump the First Amendment. I will do so right after the class studies Cohen v. California - a Supreme Court case decided in 1971.
Many students will be surprised to learn that, in Cohen, the Court overturned a disturbing the peace conviction of a man who wore a "f--k the draft" t-shirt inside a Los Angeles courtroom. After we read the decision, I plan to discuss recent university cases attempting to use the respect compact to paper over the U.S. Constitution. The class will certainly ascertain the clear illegality of our respect compact (as applied) in light of Cohen and other important Court decisions.
Next, we will do a little experiment. We will hang posters across campus, which will be adorned with the words "F--k the Respect Compact." For the record, I do not condone use of the f-bomb. I never use it in conversation and I believe it to be crude and distasteful. But that is not the point of the exercise.
The point of all this should be fairly obvious: we need to put the university in the embarrassing position of using the Seahawk Respect Compact to ban criticism of the Seahawk Respect Compact. This will demonstrate their rank hypocrisy, highlight their constitutional ignorance, and pave the way for a successful First Amendment challenge to one of the university's most cherished speech codes.
So that is my response to our latest university survey. It really wasn't necessary to circulate that thing in the first place. 92.3% of statistics are made up on the spot anyway. And about 65% of our universities are run by spineless hypocrites who need to be sued back into the Vietnam era.
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