Students and Professor May Spar in Court over Free Speech

By April 29, 2008

The law school at University of Arkansas at Little Rock (UALR) faces an unusual situation: students have advocated so hard against a professor’s speech in trying to get him punished for it that the professor has taken the step of suing the students for defamation. The case, outlined in Sunday’s Arkansas Democrat-Gazette, "alleges that he was punished for views opposing affirmative action and for coming to the defense of a student who had been accused of racial discrimination" after members of the Black Law Students Association called professor Richard Peltz a racist and asked the law school to take action against him. Whether or not the action of the students rose to the level of defamation may be for a court to decide, but law students ought to know that the First Amendment prohibits UALR, a state institution, from taking action against someone because of his views.

In a letter retrieved by the Democrat-Gazette, Peltz noted:

I would like know when these students will be told that libel and slander is not the way for them to earn respect and to demonstrate merit. It seems that they are able to complain, to accuse, to offend, without end, and everyone is expected just to take it. My students, my best students, our law review editors, are being bad-mouthed not only in the school, but in law firms and practice circles too. But no one in authority at UALR seems to be looking out for them, and they know it.

The article also quotes Harvey Silverglate, chairman of FIRE’s Board of Directors, on the troubling aspects of this case and why students may feel justified in pressuring administrators to ban allegedly offensive speech:

Intervention is becoming increasingly necessary as campuses have become more repressive since the 1980s, with the advent of "speech codes" prohibiting offensive speech about race, religion and sex, said Harvey Silverglate, co-author of The Shadow University, a book about the stifling of free speech on campuses and the co-founder of the organization.

Such "speech codes," in effect at 90 percent of U.S. colleges and universities, were developed by administrators in response to the influx of women, minorities and people of different religions, Silverglate said. Administrators intended to protect those students from possible discomfort, but instead they have stifled all ideas that aren’t politically correct ideas, he said.

"They now punish students for saying things that when I was a studentI graduated in 1964would not have been viewed as violations of anything except possibly good manners," Silverglate said.

By enforcing the codes, college administrators often grant legitimacy to allegations of racism, sexism or other discrimination that aren’t warranted, he said. Students at UALR are subject to rules in the Student Handbook, which includes a Code of Students Rights, Responsibilities and Behaviors that also applies to law school students.

But even if faced with false allegations of racism, Silverglate said a lawsuit isn’t the appropriate response.

"It is especially shocking that a professor of constitutional law, rather than rely on the First Amendment, rather than rely on academic freedom in an effort to explain why his views on affirmative action are not racist, he sues," he said.

"Both of them [students and Peltz] have betrayed the fundamentals of academic freedom by feeling that they were entitledthe students were entitled not to be offended, and the professor was entitled not to be challenged."

Though a lawsuit against students is quite unusual, it was startling today to find out that a former Dartmouth lecturer has threatened that very thing. The Dartmouth reports that Priya Venkatesan, who is also a research associate at Dartmouth Medical School, has felt that her civil rights have been violated by her own students, in episodes like this one:

[A] student went on a "diatribe" about the inappropriate nature of challenging patriarchal authority, Venkatesan said. Vakatesan respected the student’s right to express this opinion, she said, but the manner in which he vocalized his views and the applause afterward were disrespectful and offensive.

"I was horrified," Venkatesan said. "My responsibility is not to stifle them, but when they clapped at his comment, I thought that crossed the line … I was facing intolerance of ideas and intolerance of freedom of expression."

For now, it seems, the students have the support of Dartmouth in the potential case:

Dartmouth General Counsel Bob Donin does not believe Venkatesan’s lawsuit has legal merit, he said in a statement e-mailed to The Dartmouth.

"It has come to our attention that a former faculty member has e-mailed some undergraduates and faculty members mentioning the possibility of legal action," Donin said in the statement. "We have determined that there is no basis for such action, and we have advised the students and faculty members of this."

An important difference between this case and Peltz’s is that Venkatesan did not suffer any adverse action from Dartmouth. Even so, Peltz may have to meet a very difficult standard to prove that the defendants committed defamation against him.