Free Speech and Diversity

Context for Speech Codes

U.S. colleges and universities introduced speech codes in the late 1980s as a response to a rise in overt acts of racism and sexism directed toward students of color and women. Frustrated with these experiences of intolerance, students called on their campus leaders to take steps to ensure a greater sense of safety and tolerance, with many campuses responding by instituting speech codes aimed at and regulating expressions of intolerance and harassment. These early speech codes occurred across the whole country, ranging from public universities [Page 933]such as Michigan and Wisconsin to private institutions such as Brown, Emory, Stanford, and the University of Pennsylvania. Estimates suggest that by the mid-1990s, approximately one third of all college campuses had some form of speech code.

Although initial speech codes had the support of some students, they also met significant student resistance and soon faced challenges through the legal system. Notable early legal cases include expulsion of a student at Brown for a rant of racist statements and the infamous “water buffalo” incident at the University of Pennsylvania, in which a student was charged with having violated the school's racial harassment policy by shouting “Shut up, you water buffalo” at a group of female students, mostly African American, who were creating a disturbance outside his dorm. In both of these cases, the colleges took action against students who had seemingly engaged in offensive or hostile speech. All of the early legal challenges ended with rulings in favor of the students suing against the speech codes. Courts in California, Iowa, Texas, Wisconsin, Michigan, and Ohio all ruled against speech codes as vague or overly broad, and therefore a violation of students' First Amendment rights.

Despite consistent losses to legal challenges, the number of speech codes continued to rise at colleges and universities between the mid-1990s and the early 2000s. Administrators found that having speech codes was a symbolic tool in promoting a campuswide culture of increased tolerance even if the codes were seldom used. Today, roughly 70% of all colleges and universities have some form of a speech code.

Major Arguments for and against Speech Codes

The debate over whether and how colleges and universities should regulate the forms of expression perceived to be offensive or hostile occurs between two poles of a continuum. On one end of that continuum is free speech absolutism, which argues that any regulation of speech is a threat to the freedom of individuals and society. The major proponents of this viewpoint are civil libertarians and social conservatives. The other end of the continuum is led by the hate-speech movement, whose supporters argue that regulation of injurious and assaultive speech promotes democracy and the inclusion of historically marginalized citizens. The major proponents of this viewpoint are critical race theorists and feminists. A common theme between these two groups is that speech plays a vital role in the health of a democracy, although there is disagreement about whether regulated speech helps or harms a democratic learning environment.

...