Students Taking Offense

December 30th, 2016

Yesterday I blogged about whether a an argument becomes more persuasive if the speaker discusses incidents that would personally offend him or her. I noted, mostly in passing, that “I almost never get offended,” even where perhaps some may expect I would. It’s true. (I still laugh out loud at Borat, for example). Though, I admit I am somewhat atypical, especially for a millennial. I fully recognize that many students (who each semester get younger and younger than me) have a different threshold. As a result, they may find offensive incidents I don’t.

There’s really nothing professors can do to dial back when students get offensive. Indeed, many professors heighten that sensitivity, but that is a story for another post. Here, I’d like to talk about what a university should do when a student complains about a professor’s conduct that he or she finds offensive. For this, I encourage you to read in its entirety Eugene Volokh’s latest post, titled “Silencing professor speech to prevent students from being offended — or from fearing discrimination by the professors.” This excerpt, I think, capture the essence of Eugene’s argument:

People often support disciplining and even firing professors who say things that are perceived as racist on the grounds that 1) those professors can’t be trusted to evaluate minority students fairly, 2) students will be afraid that they won’t be judged fairly, or 3) students will more broadly lose confidence in the professors (or just couldn’t stand to be in the room with them) or even in the institution, and won’t learn as effectively. …. I appreciate the force of these arguments, and indeed, if all you care about is maximum teaching effectiveness and reliability, you might take such a view. But, if accepted, these arguments really will be the end of freedom of expression — both casual and more formally academic — on university professors’ part, because they reach far beyond black makeup in Halloween costumes.

If students are given a heckler’s veto, whereby they can get a professor fired because they find something he did–even off campus, with a pedagogical purpose–to be offensive, academic freedom is toast. Volokh adds:

There would be no principle to which dissenting voices could appeal for protection. Once a professor’s public speech — or even speech in a relatively private setting, so long as some students are there or some students hear about it — is seen as sufficiently offensive to enough students, that would be seen as justification for suspending or firing the professor.

The correct response from a responsible university to this sort of moral outrage should be “Tough.” Eugene explains:

Professors are entitled to express their views, including controversial ones; indeed, they’re supposed to express such views, however controversial, as part of their scholarship and their public commentary. And that applies to condemnation of religions, economic classes and political belief systems, as well as debate on less heated topics. “[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom.” If you disagree with the professor, express that disagreement, the universities would say; but we won’t shut the professor up in order to prevent you from feeling offended or alienated. …  Yet, again, I take it that the university’s response to such complaints about professors who made anti-Trump-voter, anti-Catholicism, anti-capitalist or anti-American statements at parties or blog posts would still be some version of “tough.” “You need to be confident that our professors will judge you fairly,” the university would presumably say (however credibly). “And we can’t just shut up our professors on all these subjects; they’re supposed to express themselves on controversial topics. The university is all about learning from people who sharply disagree with you, even when those disagreements go to important parts of your identity.”

But at the University of Oregon, the faculty and administration indulged–indeed abetted–this heckler’s veto.

When confronted by annoyed students, the administration must make clear that the purpose of a university is to “foster[] debate and inquiry”–and that entails being offended at times. Eugene explains:

I think that, on balance, this university approach, with its traditional support for freedom of expression, is the better one, if universities are to be places for fostering debate and inquiry. But if professors like Shurtz are barred from the classroom for their speech, then all this speech will be threatened. To the extent that any would be protected, it would be protected only when those who are in power — some mix of university administrators, state legislators, faculty senates, student majorities, student activists and wealthy donors — happen to agree with the potentially offensive speech.

Alas, far too many universities act as if their primary purpose is to promote “inclusion,” social justice, and other progressive values. I’ll flashback to a post I wrote in September about a debate I participated in at SMU on intellectual diversity.

Sixth, a student asked [during Q&A] why would schools hire professors out of the mainstream, in a way that could injure their “brand.” I was absolutely gobsmacked by her ignorance about the importance of the university to foster dissent and ideas outside the mainstream. But I really shouldn’t blame the student. I doubt this tenet of academic freedom was ever articulated to her. Rather, she was probably taught at every juncture to avoid saying or doing anything that would upset others–that includes writing and thinking about unorthodox ideas. The framing of her question, which danced around the issue, was even more ignorant. She suggested that hiring conservative professors would hurt the school’s “brand.” To the contrary, many donors are withholding their checks because of the hostile environment brewing on college campuses. But that doesn’t resolve the issue–universities should promote the pursuit of ideas, in spite of their unpopularity. After reflecting on the question, a few hours later (always too late) I came up with this response: Would you have hired a scholar in 1972 who wrote that the 14th Amendment protected a right of same-sex marriage. The year before, the Supreme Court dismissed Baker v. Nelson for “want of a substantial federal question.” At a time when homosexuality was considered a mental illness, it certainly could have hurt a school’s “brand” to hire such a scholar, writing material entirely out of the “mainstream.” Four decades later, that position is now the law of the land. I’ll be sure to use this example the next time I debate this topic.

If students are never told “Tough,” and that their school exists to challenge, and often offend them, how are they supposed to know any better? Usually during the first week of ConLaw, I issue something of a blanket trigger warning: “I will offend you at some point during this semester.” We discuss slavery, abortion, eugenics, internment, and a host of other difficult topics. “If you don’t wish to be offended,” I tell them, “switch to a different section.” So far no one has taken me up on the offer.

Consider a recent tussle at Drexel University. A professor tweeted that all he wanted for Christmas was a “white genocide.” He was making some sort of reference to white nationalists, who believe that interracial marriage results in the destruction of the white race. Whatever. Not the kind of argument I would make, but he had some sort of scholarly spark behind the snark. Unsurprisingly, lots of people were offended. At first, the University announced that it wanted to meet with the professor about his tweet.

Drexel became aware today of Associate Professor George Ciccariello-Maher’s inflammatory tweet, which was posted on his personal Twitter account on Dec. 24, 2016. While the University recognizes the right of its faculty to freely express their thoughts and opinions in public debate, Professor Ciccariello-Maher’s comments are utterly reprehensible, deeply disturbing, and do not in any way reflect the values of the University.

The University is taking this situation very seriously. We contacted Ciccariello-Maher today to arrange a meeting to discuss this matter in detail. 

Whether or not any punishment would be issued, a university statement singling out the faculty member for a meeting has the inescapable consequence of stigmatizing the speech, and chilling academic freedom.

After some reflection, the University issued a revised statement that (more or less) strikes the right tone:

The social media comments over winter break by George Ciccariello-Maher, Associate Professor of Politics and Global Studies at Drexel, have precipitated a heated public dialogue. The issue has caught the attention of national media and put Drexel in the spotlight. As University leaders, we understand that people have very different perspectives and opinions on such matters; it is our duty to ensure that all members of our community feel truly welcome and can participate in an inclusive learning environment. Instances such as this one both test and strengthen Drexel’s fundamental dedication to the principles of academic freedom and freedom of expression. …

The University strongly encourages the use of speech—not threats or violence—to counter speech with which one disagrees. In the coming months, we look forward to a constructive exchange of ideas and opinions on the subject of academic freedom and freedom of speech.

The answer to offensive speech is more speech. Far more productive than firing or punishing the tweeter is for students and teachers to discuss these topics (white genocide?) and decide whether there is any merit to the tweet, or if it was a dumb joke. That approach would “foster debate and inquiry.” Not censor speech.

Drexel, which is not a state institution, shows an awareness of the First Amendment that is utterly lacking at the University of Oregon, which is a public institution, bound by the First Amendment.