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A Time to Choose for the AHA in Philadelphia: Speech Codes and the Academic Bill of Rights

At the meeting of the AHA Business Meeting on January 7 in Philadelphia, the members will have a rare opportunity to stand up for academic freedom.

They can vote on one of two resolutions. The weakest of the two condemns the so-called Academic and Student Bill of Rights but is completely silent on other threats to academic freedom, most notably speech codes. For this reason, it will be easy for critics to dismiss the resolution as selective and opportunistic.

A better alternative which does not suffer from this fatal flaw is the second resolution (which is proposed in the form of substitute). The substitute not only opposes the Academic and Student Bill of Rights but also the use of campus speech codes to limit academic freedom:

Whereas, Free and open discourse is essential to the success of research and learning on campus; and

Whereas, Faculty and students face threats to academic freedom from multiple sources which include government agencies and campus administrators; and

Whereas, The so-called Academic and Student Bill of Rights and campus speech codes represent the two leading threats to academic freedom today; and

Whereas, Administrators, politicians, and others have used speech codes and the Academic and Student Bill of Rights to improperly restrict faculty choices on curriculum, course content, and personnel decisions; and

Whereas, The so-called Academic and Student Bill of Rights and speech codes violate academic freedom and undermine professional standards by imposing political criteria in areas of educational policy that individual faculty members normally and rightly control; and

Whereas, These measures have restricted free and open discourse for students and faculty alike through such methods as "free speech zones;" therefore be it

Resolved, That the American Historical Association opposes the passage of the Academic and Student Bills of Rights, the use of speech codes to restrict academic freedom, and all similar attempts to limit free and open discourse on campus.

Unfortunately, the sponsor of the original resolution has rejected a friendly amendment to include the language on speech codes.

Speech codes take many forms and vary from one college to the next university. After the 1960s, when American colleges and universities ceased to operate in loco parentis, campus speech codes emerged on one campus after another as a means of securing a "safe space" for some students who were offended by certain kinds of speech. On one campus or another, speech that is discomforting, embarrassing, flirtatious, gender specific, inappropriate, inconsiderate, harassing, intimidating, offensive, ridiculing or threatens a loss of "self-esteem" is banned by speech codes. Too often, they target student critics of academic bureaucracy.

Taken literally, speech codes would ban healthy jeering at a visiting sports team. Wouldn't want to intimidate those Aggies! More importantly, teachers have to be able to urge students to consider perspectives that they had not previously considered, without fear of being accused of being "offensive." Ultimately, speech codes are problematic because they vest final authority in the subjectivity of the offended. Whether it is "intentional or unintentional," for example, Brown University bans all "verbal behavior" that may cause "feelings of impotence, anger, or disenfranchisement." The nation's Founders, who did not mind offending British authorities, would have been ill-educated by such constrictions on free speech.

The problem with speech codes is that speech that should be self-governed by good manners and humility is prescripted by inflexible legal codification. Fortunately, however, Philadelphia's Foundation for Individual Rights in Education has fought and won a series of legal battles that have curtailed the prevalence of speech codes in public higher education. In private colleges and universities, where 1st Amendment rights do not necessarily prevail, the struggle continues on an institution by institution basis.

Just when there is good news to report about the unconstitutionality of speech codes on public campuses, however, new threats to free speech arise from outside the academic community. They come from the Center for the Study of Popular Culture in Los Angeles. The Center and its legal arm, the Individual Rights Foundation, are led by David Horowitz. A militant activist on the left in the 1960s, Horowitz abandoned it 25 years ago to become a militant activist on the right.

Like campus speech codes, Horowitz's Academic and Student Bill of Rights appears well intentioned. Insisting that academic communities must be more responsive to outside criticism, it adopts a form of the American Association of University Professors' 1915 "General Report of the Committee on Academic Freedom and Tenure." It holds that political and religious beliefs should not influence the hiring and tenuring of faculty or the evaluation of students, that curricular and extra-curricular activities should expose students to the variety of perspectives about academic matters and public issues, and that
institutions must not tolerate obstructions to free debate nor, themselves, become vehicles of partisan advocacy. Who could oppose such commitments? They are already features of the professorate's assumed values.

Yet, the American Association of University Professors and the American Civil Liberties Union criticize Horowitz's Academic and Academic Bill of Rights as an effort to "proscribe and prescribe
activities in classrooms and on college campuses." One has only to look at the legislative progress of Horowitz's political campaign to understand why. His Academic Bill of Rights has been introduced in Congress by Representative Jack Kingston (R-GA), but it's had greater promotion in the state legislatures of California, Colorado, Florida, Georgia, Indiana, Maine, Massachusetts, Ohio, Tennessee, and Washington.

Instead of being the even-handed vehicle it claims to be, everywhere it is a function of right-wing attacks on academic communities. In Florida, for example, Representative Dennis Baxley says that the bill he introduced will give students legal standing to sue professors who do not teach "intelligent design" as an acceptable alternate to the theory of evolution. His critics respond that it could give students who are Holocaust deniers or who oppose birth control and modern medicine legal standing to sue their professors.

Beyond the governing authority of Florida's public colleges and universities and in the name of free thought and free speech, it would encode in state law restrictions against those values.

The Founders, who recalled their own exercise of free speech and free thought, when they challenged British governing authority, wrote guarantees protecting them from constricting government action. In academic communities, we need an alliance across ideological divides to support free speech by abolishing "speech codes" and to fight the Academic and Student Bill of Rights in state legislatures and the Congress because it is a Trojan Horse that intends the opposite of what it claims on its face.

The most effective strategy to fight rightwing Trojan Horses, however, is to be equally vigilant against leftwing Trojan Horses. If the members of the AHA pass the first resolution, which is silent on speech codes, they will be handing David Horowitz an unintended victory. He will triumphantly respond that the AHA's stand is hypocritical and selective. The end result will be to undermine the entire effort. If on the other hand, the substitute resolution is approved, it will be Horowitz, not the members of the AHA, who will be rendered speechless in this debate.

For this reason, we strongly urge our colleagues to come to the Business Meeting at the Marriott Grand Ballroom on January 7 at 4:45 p.m. and vote for the substitute resolution. By doing so, they will prove that they value academic freedom for everyone on campus, not just a select few.