The Danger of Campus Bans on Bullying

By John K. Wilson

Abstract:

Colleges are increasingly adopting policies to ban bullying on campus. But these prohibitions on bullying pose serious risks to freedom of expression at colleges and universities. Antibullying policies are often vague and ill-defined. Taking a concept originally used to define misconduct by one child toward another and applying it to adults in higher education is a step that endangers free speech. Antibullying policies are particularly dangerous because they can be used by administrators to punish dissenting faculty and whistleblowers. Instead of taking the risky step of punishing bullying on campus, colleges ought to enhance protections for free expression and due process, so that individuals can speak out against bullying without having to fear dire consequences.

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Those who’ve read my previous comments will not be surprised that my response to John Wilson’s article is: “Bravo!” His well-organized and clearly expressed opposition to campus bullying bans is compelling. He argues that since most bullying bans incorporate the notion of emotional distress, they often come into conflict with academic discourse as well as protected speech. The exposure of wrongdoing frequently involves emotional distress. (In fact, emotional distress was the basis for Southern slave owners in the 19th century seeking to curtail free speech and punish itinerate abolitionists such as John Fee the founder of Berea College.) Wilson also points out that criticism (whether of students or colleagues) “is an essential part of academic engagement.” Under many bully bans, chastising students for a lack of preparation or an inconsistent (or incoherent) argument might be considered violations. Another point Wilson makes is that such bans often protect administrations from criticism and controversy at the expense of the disadvantaged they claimed to protect. Two issues might be added to Wilson’s succinct and compelling arguments: 1) what is the court’s opinion concerning such administrative restrictions on speech? and 2) to what extent might Wilson’s observations and arguments be extended to the interpretation and implementation of Title IX?

Since Oliver Wendell Holmes’ classic dissent in Abrams (1919), the courts have become increasingly willing to recognize and protect speech rights. For a time, courts allowed colleges and universities to interpret and apply academic freedom protections. However, over the last several decades, courts have become increasingly willing to intervene when private, as well as public, institutions appear to violate speech rights and academic freedoms. Here is brief summary of several relevant cases:

Falwell v. Hustler (1988).

In 1983 Hustler Magazine featured a “parody” claiming fundamentalist preacher Jerry Falwell had a drunken incestuous relationship with his mother in an outhouse. Falwell sued for “intentional infliction of emotional distress” and a jury awarded him $150,000 in damages. Hustler appealed. The Supreme Court unanimously decided in favor of Hustler Magazine, noting that the parody contained no false statements of fact and there was insufficient evidence of “actual malice.” The protection of free speech superseded protections against emotional distress. https://www.oyez.org/cases/1987/86-1278

Bonnell v. Lorenzo (1999).

Despite trigger warnings concerning offensive and vulgar language, a student filed a complaint against English Professor John Bonnell concerning his profane language in class. In response, Professor Bonnell distributed her complaint (from which her name was removed) with an extensive rebuttal claiming his language was educationally appropriate and Constitutionally protected. The court found that Professor’s Bonnell’s profane speech was not protected. However, the court decided the release of the student’s complaint, attached to Professor Bonnell’s essay, An Apology: Yes, Virginia, there is a Sanity Clause, was “protected” and did not breach confidentiality restrictions nor constitute “retaliation.” Here’s part of the appellate court’s decision:

“The Court recognizes that colleges are a resource for ideas, free thought, experimentation, and critical thinking. The position of a college English professor includes with it First Amendment protections… When a college gags the professor or censors the students, the free expression of ideas and thoughts as supported by the First Amendment is impinged upon. There is no valid justification in support of MCC's suspension of Bonnell… a professor does have a constitutional right to teach in an environment free from First Amendment violations… based on Supreme Court authority… even minor infringements of First Amendment rights constitute the irreparable harm necessary for injunctive relief… Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all... not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom… `The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' The classroom is peculiarly the `marketplace of ideas.’ The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth `out of a multitude of tongues, (rather) than through any kind of authoritative selection.’”
https://law.justia.com/cases/federal/district-courts/FSupp2/81/777/2420855/

Rodriquez v. Maricopa County Community College District (2010).

Professor Walter Kehowski, a math teacher, used the Maricopa County Community College’s e-mail listserv, to send three e-mails expressing his views on immigration, the “superiority of Western Civilization,” and other offensive views to his colleagues and co-workers in 2003. Several emotionally distressed colleagues complained about Professor Kehowski’s hostile speech to administrators. The Chancellor stated that while Kehowski’s views were “not aligned with the vision of our district,” the district would not discipline him because doing so “could seriously undermine our ability to promote true academic freedom.” Frustrated by the district’s unwillingness to punish Kehowski, six Hispanic coworkers filed a suit in district court alleging the administrative inaction created a hostile environment based on race and national origin. An appeal asked the court to overrule the district court’s decision that administrators had condoned a hostile environment. Title IX requires employers to end workplace harassment when they become aware of it, but what if the offensive language is protected speech? In a unanimous opinion, the 9th Circuit decided Kehowski’s e-mails, however disagreeable, were protected and, thus, did not constitute harassment. Here’s how the court explained its decision in favor of the administration’s refusal to punish Professor Kehowski:

“Plaintiffs, no doubt, feel demeaned by Kehowski’s speech… (But) their objection to Kehowski’s speech is based on his point of view, and it is axiomatic that the government may not silence speech because the ideas it promotes are thought to be offensive. ‘There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause.’… Indeed, because Kehowski’s ideas fall outside the mainstream, his words sparked intense debate… The Constitution embraces such a heated exchange of views, even (perhaps especially) when the risk of conflict and insult is high. Without the right to stand against society’s most strongly held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. The right to provoke, offend and shock lies at the core of the First Amendment… This is particularly so on college campuses. Intellectual advancement has traditionally progressed through discord and dissent, as a diversity of views ensures that ideas survive because they are correct, not because they are popular. Colleges and universities—sheltered from the currents of popular opinion by tradition, geography, tenure and monetary endowments—have historically fostered that exchange. But that role in our society will not survive if certain points of view may be declared beyond the pale. ‘Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.’ …We have therefore said that ‘[t]he desire to maintain a sedate academic environment . . . [does not] justify limitations on a teacher’s freedom to express himself on political issues in vigorous, argumentative, unmeasured, and even distinctly unpleasant terms.’” https://www.casemine.com/judgement/us/591463f6add7b0493426fda6

These judicial decisions to intervene and protect faculty members’ Constitutional and academic freedoms dealt with actions involving faculty members at public universities. Private universities differ; they are not a part of the government and, thus, some have argued are immune to the Constitutional protection claims of their faculty members. However, nearly all private colleges directly advertise and affirm their protection of academic freedom and freedom of speech. As the Foundation for Individual Rights in Education (FIRE) (Silvergate, et, al. 2005) states: “If a university has stated a policy in writing, a court will require the university to adhere to that policy… ” (p. 61). Thus, Constitutional rights and academic freedoms are a matter of contractual obligation at private colleges. This is an issue the Wisconsin Supreme Court addressed in a very recent case.

McAdam v. Marquette University (2018).

John McAdams, a Political Science Professor at Marquette University, was known for his fiery conservative opinions about education and politics. In one blog, he berated a graduate student instructor by name who would not permit debate about gay marriage in her class, claiming opposition was inherently homophobic and hostile. The administration, as well as most faculty members, was outraged by McAdams’ post and sought to censure him. Claiming he posed a danger to others, the administration suspended McAdams and banned him from campus. From McAdams’ perspective, this violated his employment contract as well as his right to due process and tenure protections. The university convened a “hearing committee” but failed to ensure McAdams’ due process rights. After a weeklong hearing, the faculty committee issued a convoluted report that created new rules and charged McAdams with having violated them. Marquette President Michael Lovell demanded that McAdams proffer an admission of wrongdoing or be fired. McAdams refused and was indefinitely suspended without pay (viz., “fired”). McAdams sued Marquette for breach of contract. His claim challenged both his summary suspension and his subsequent administrative hearing as violating due process rights. The trial court ruled in favor of Marquette, concluding that the court must defer to the faculty hearing committee and adopt its findings of fact and conclusions of law despite McAdams showing that Marquette withheld key information from the committee. By a 4-2 vote, the Wisconsin Supreme Court ruled that Marquette had breached its contract with McAdams by punishing him for protected speech. Marquette was ordered to reinstate McAdams with his full rights and privileges as a tenured professor. The decision was hailed as a victory for free speech and the protection of conservative professors on progressive campuses everywhere. https://law.justia.com/cases/wisconsin/supreme-court/2018/2017ap001240.html

This decision extended faculty members’ academic freedoms and revealed a state Supreme Court’s willingness to review administrative personnel decisions. Marquette is a private religious institution, but this did not prevent judicial oversight. The court was particularly critical of the administration’s involvement in the process, expressing concern with its apparent bias. The faculty committee itself was criticized for pre-existing biases and a willingness to let what appeared to be a pre-determined conclusion guide its analysis of the claims and available evidence.

Wilson focuses on explicit and specific bans on “bullying.” However, the implicit beliefs underlying many administrations’ interpretation and implementation of Title IX restrictions against the creation of hostile work environments draw on similar assumptions. In all the judicial cases listed above (Falwell, Bonnell, Rodriquez, and McAdams) the protagonists acted as bullies and inflicted emotional distress on the targets of their ire. In the Rodriquez case, the court supported the community college district’s refusal to punish him for patently offensive speech. The Bonnell case is complex, but the court’s decision made clear the vital importance of protecting free speech in the college classroom. Similarly, in the McAdam’s case, despite the inherently offensive and injurious nature of his harsh criticism of a junior colleague, the court held this to be protected speech.

The theoretical connections between bullying bans and Title IX implementation was manifest in the AAUP’s (2016) History, Uses, and Abuses of Title IX (Executive Summary):

…Title IX … accompanied by regulation that conflates sexual misconduct… with sexual harassment based on speech… resulted in violations of academic freedom through the punishment of protected speech by faculty members. Recent interpretations of Title IX are characterized by an overly expansive definition of what amounts and kinds of speech create a “hostile environment” in violation of Title IX… These problems of interpretation and implementation demand… concentrated efforts to ensure that procedural rights… are respected… The effects of such practices are compounded by the increasingly bureaucratic and service‐oriented structure… characterized by a client‐service relationship between institutions and their students. This client‐service model can run counter to the educational mission of institutions of higher education when, as in the case of Title IX, colleges and universities take actions to avoid OCR investigations and private lawsuits… https://www.aaup.org/report/history-uses-and-abuses-title-ix?link_id=1&c...

Wilson’s article is thoughtful and thought provoking. It is likely that most of the bully bans he identifies would run afoul of Constitutional safeguards concerning freedom of speech and institutional obligations to protect academic freedom. However, as a practical matter, many colleges and universities with extensive resources would rather risk the seemingly distant and uncertain consequences of a judicial sanctions than the immediate disdain and negative reaction of activist elements on campus. Such considerations implicitly shape the implementation of existing Title IX programs as well as the introduction of explicit administrative bans on bullying. These are, indeed, interesting times.

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