University Daliv Kansan / Wednesday, April 3, 1991
5
Policy outlaws racist remarks
Universities adopt controversial legislation to deter racism
By Joe Gose
Kansan staff writer
A member of a local fraternity strikes and utters racial slurs to an African-American woman who is delivering pizzas.
A student group invites the Kuwai Klux Han to the University of Kansas to hold a forum. The invitation is widespread student demonstrations.
According to Department of Justice statistics, 53 racial incidents were reported on college campuses in Nebraska, Iowa, Kansas and Missouri from 1984 to 1989. There were 23 on Kansas college campuses.
Across the country, universities are adopting "hate speech" legislation that outlaws such incidents. Thus, college campuses are becoming the battleground for those who wish to protect civil rights by controlling hate speech. Students should believe the ultimate civil right, the First Amendment, is in jeopardy.
Though some think there are constitutional problems with these policies, others think the rules are too restrictive in theation of racial incidents on campuses.
But these numbers should be doubled because many incidents go unreported, said Bill Whitcomb, mediator for the community relations service of the Justice Department in Kansas City, Mo.
Under a new KU policy, a student or faculty member could face expulsion or dismissal if he or she insults the school's policies, racial, ethnic or religious background.
When a Hispanic woman is late to
class, a KU instructor tells the class
that all Cubans in Miami are at least
twelve hours for class, work and
everything else.
"The reason they are not reported is because a lot of students don't know whether there is a policy to address these kinds of situations." he
Whitecomb said more communities were giving approval to speech restrictions because of such incidents.
"Are you going to allow 'the challenge of civil rights under the cloak of academic treedom?' he asked "The man are saying, 'No, that shouldn't be.'"
The Kansas Board of Regents said "no" in April 1989, when it ordered its institutions to adopt policies addressing the issue.
KU's policy
KU adopted its policy last summer. It prohibits any University community member from making discriminatory, harassing speech that attacks an individual's or group's race, ethnicity or religion.
It defines harassment as behavior or conduct that threatens violence or lawless action, "fighting words" such as insults, and slander, libel or obscenity that advocates discrimination
Berger, the principal author of the policy, said. "The basic tenet of this policy is to provide a mechanism for people who feel that they have been harassed on the basis of their racial or ethnic background. On the basis of the definitions in there, any person has the right to use the policy, providing they personally submit a report."
A person who violates this policy ultimately could face firing or expulsion. Sanctions that are less severe, an oral rebuke, also could be levied.
Thomas Berger, assistant director for affirmative action at KU, said the sanctions were implemented as the result of a formal hearing finding of "probable cause." But he said that the majority of discrimination complaints at KU exceed the norm level and never before the discrimination hearing board.
A judge would consider these definitions to determine the constitutionality of the policy if it ever were challenged in court.
Constitutional concerns
Tom Stacy, associate professor of law, said that the definitions were written with the First Amendment in place. The policy could run into problems.
"The Supreme Court has recognized that in some situations expressive conduct or behavior constitutes speech," he said. "And the state has a little more leeway in regulating expressive conduct than they do in classic speech. But still, there are First Amendment rights."
Stacy, who specializes in constitutional law, also said there was an ongoing debate on whether the fightingords were right to be sent to 1948 Supreme Court case, Chaukpyn v. New Hampshire, was still an acceptable doctrine.
"The broad rationales of Chaplin's seem inconsistent with the thrust of a lot of decisions the Court has rendered in the last couple of decades," he said. "But the Supreme Court has recently cited Chaplin's without indicating that that case is no longer good law, so it is an indication that there is something left of Chaplin."
Victoria Thomas, University general counsel, said the definitions were drafted to walk the fine line between speech and prohibiting discrimination.
"One of the underpinnings of our system of government is that government does not step in and stop speech," she said. "But if you're in one of those groups and there is a person standing up saying outrageous things to you, it doesn't go over very well to have someone hold up the policy and say, 'This isn't imminent lawlessness.'"
Tom Stacy associate professor of law
'The Supreme Court has recognized that in some situations expressive conduct or behavior constitutes speech.'
"The thing you want to know is, Why do I have to be subjected to something short of that?" And that's the kind of tension that's always going to be present."
Thomas said that if an incident concerning the speech occurred at KU, it would have to be determined whether the speech met the policy's definition.
"If you have a specific situation over at Wescoe, and someone is offended by what a person is saying, he or she would first file a complaint," she said. "But then the sorting out has to happen. Has this speech about an ethnic, racial or religious group come over the line and be punished for threatening violence? Or has it became 'fighting words'?"
"That's why we focused on specific definitions. So that if an individual is standing up and expressing an opinion that we may find aberrant and distasteful, in all likelihood that's not going to violate the policy."
Because the policy is directed at
Uncertainties exist
the University community, it is uncertain how it would affect speakers from outside the University
Berger said that any action taken against these speakers would depend on the community's response.
"There are three separate issues here: a person's civil rights, the First Amendment and academic freedom," he said. "I think all of those things should be taken into account by individuals who are somehow involved in bringing or sponsoring speakers on campus who have viewpoints that are not universally accented."
Berger offered the March 8,1988. Klan incident as an example.
However, government and hategroup watchdog organizations around the region take a dim view of hate-speech legislation.
"You had the faculty saying you had to have academic freedom, you had the First Amendment people talking about that issue and you had people who felt that the Klan's very presence had nothing to do with free speech or academic freedom but rather represented discrimination," he said. "This is a diverse community. It's a real complex issue."
Alvin Sykes, president of Justice Campaign for America in Kansas City, Mo., said that the ideals behind hate speech legislation were conceptually interesting but that no form of speech should be restricted.
Organizations disagree
"A lot of time when you re trying to cut off someone's speech opportunity, you kill off a lot more speech at one at little segment." he said.
"The strength of the Constitution is not in something that is said in convenience — that everybody agrees with — that's easy. The test is when there is something being said that we're opposed to and where we allow the people we are opposed to to express their views."
"We believe that good will always prevail over bad, so we feel like, 'Let them in with the hate speech, let them in the boxing ring with their ideas and we'll knock them out with truth and justice.'" he said.
Sykes also said that when hate groups like the Klan did speak, they revealed their true ignorance.
Bob Wolfson, director of the Plain States Regional Office of the Anti-Defaimation League of B'nai B'rith in
According to KU's Racial and Ethnic Policy, harassment is defined as:
1. Behavior or conduct addressed directly to an individual(s) and that threatens violence or property damage, or incites imminent lawless action, and that is made with the specific intent to harass or intimidate the victim because of race, religion, ethnicity, or national origin; or
2. "Fighting Words," such as racial and ethnic epistles, slurs, and insults directed at an individual(s) with the intent to inflict harm or injury or that would reasonably tend to incite an imme diate breach of the peace, or
3. Slander, libel or obscene speech that advocates racial, ethnic or religious discrimination, hatred or persecution.
Omaha, Neb., said his organization was against censoring speech on campus.
"We're not going to win in the marketplace of ideas limiting free speech," he said. "We encourage universities to adopt programs that offer education on the issues rather than surpass speech."
Gordon Risk, Topека American Civil Liberties Union representative, agreed, but said the hate-speech issues were complicated.
"I think actually a lot of ACLU affiliates are wrestling with it, and I think most of them have come down on the side of absolute free speech with the exception of the Southern California affiliate," he said. "Our position is that we desire to be permitted speech should be permitted because legislation would backfire in the end against these people who it is attempting to protect.
"But if the speech is harassment, not just opinions but actual sexual or racial harassment, then it may not be protected."
Continuing questions
The trick is knowing when speech becomes harassment, and there are no clear-cut guidelines on when that occurs.
Berger suggested that the interpretation of the First Amendment was subject to change just as the nation's cultural climate was changing.
"We've grown up and we've become accustomed to this idea that you can say anything; it's your right
Mellissa Unterberg/KANSAN
to say anything, although you can't shoot 'fire' in a crowded theater," he said. "I think one has to look careless with free speech really means."
Ron Griffin, professor of law at Washburn University in Topeka who helped draft similar legislation, said he was sure to be looked at in a historical context.
"If an historically dominant group in society utter a painful remark at an historically subordinate group, the subordinate group may not have the tools or vocabulary to respond in an equal fashion," he writes. "but when the dominant group is being practiced if the subordinate group does not have the vehicle to respond."
Although many organizations and individuals already have established where they stand, the debate on this issue is ongoing. The insurance is guaranteed to continue for years.
Whether or not the Supreme Court considers the dispute and develops a test directed specifically at speech on campuses depends on the consistency, or inconsistency, of future lower court decisions, said KU law professor Tom Stacy.
"The Constitution protects freedom of speech on the one hand, and it probits race discrimination on the other," he said. "These cases involve a collision of those two fundamental civil liberties. They're tough cases. There are no easy answers."
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