More Fallout from Shoddy Scholarship in Harvard Law Review

By August 14, 2009

The reactions to Kelly’s dismantling of a sloppy case comment published in the Harvard Law Review‘s April edition continue to roll in.

The comment, published unsigned as per HLR policy, maintained that DeJohn v. Temple University was incorrectly decided, that speech codes on campus are constitutional, and that workplace harassment standards should be applied to the educational setting. Making matters yet worse, the comment’s author and the HLR‘s editors somehow forgot to cite any of the many federal decisions striking down speech codes precisely like the one at issue in DeJohn as unconstitutional on First Amendment grounds. This incredible oversight is a black mark for HLR. Already, the comment has been thoroughly criticized by David French over at Phi Beta Cons. And the fallout continues.

Riley Waggaman, writing in his blog The Diploma Mill, published a scathing (and hilarious) critique of the comment and the reasoning on which it relies. Riley writes:

There is a certain phenomenon in American higher education that I just can’t seem to wrap my head around. It’s called ‘the speech code,’ and holy mackerel, it’s all the rage these days! — Even though policies regulating speech are completely antithetical to the purpose of higher learning; and even though courts have laughed at them. Over and over and over again. Because they are a joke and a disgrace.

So it’s really not surprising the Harvard Law Review published a comment that basically said, "Speech codes aren’t so bad. Keep ‘em. They are very chi chi." Which is funny, because apparently the folks at HLR forgot to mention courts have ruled unanimously that speech codes at public universities are outrageously unconstitutional — like, not even a little bit constitutional.

We here at FIRE share Riley’s incredulity! Moving from the comment’s lazy scholarship to speech codes themselves, Riley asks a great question of those who argue that speech codes are necessary on our nation’s campuses:

Honestly, what are people so afraid of? That without speech codes hoards of secretly sexist/racist/homophobic college students are going to come out of the woodwork and take over? Yes, there are literally thousands of racist sleeper cells in every college and university in America. They are just waiting for a ripe time to rise up and impose academic apartheid! They are like the Al-Qaeda of intolerance! OH NOES!

You would think freedom of expression would be considered particularly sacred in academia, where presumably ideas are dissected and engaged on an academic level — you know, the whole ‘marketplace of ideas’ concept.

Yeah, you would think so. But as FIRE’s work shows, too often that’s sadly not the case.

Thanks to Riley for his attention to the HLR‘s lapse in judgment. His insight here has already been picked up by popular law blog Above The Law, which summed up Riley’s blog entry thusly: "The Harvard Law Review gets smacked down — by a college kid." (Riley’s a senior at Wheaton College in Massachusetts.) We concur with Above The Law‘s conclusion.

Schools: Harvard University