Does something seem oddly familiar about the case of Donald Hindley at Brandeis? As Torch readers well know, Donald Hindley is a professor who has served Brandeis for over 46 years and was found guilty of “racial harassment,” apparently for criticizing and explaining use of the word “wetback” to deride Mexicans and other immigrants. I say “apparently” because, as Eugene Volokh so effectively has pointed out, Brandeis has not even been clear with Hindley what words got him in trouble. Still, all signs point to the use of the word “wetback,” which a single student apparently found so offensive that he or she filed a complaint, regardless of the context in which the term was used.
If the case seems to ring a bell, it should. Such tales of PC run wild have been with us in fiction for decades. The Hindley case reminds me of Philip Roth’s The Human Stain, in which a professor’s career is turned upside down after he refers to two students who did not show up for class as “spooks.” The professor, of course, meant “ghosts,” but when the two missing students turn out to be black, the incident ignites a firestorm of identity and personal politics. (The professor, it turns out, is actually a light-skinned black man himself who has hidden his race all of his life, adding a nice Rothian touch.)
As Wendy Kaminer has pointed out, punishing someone for using an epithet in order to decry its use is right out of an episode of Curb Your Enthusiasm, where Larry gets in trouble for using the n-word even though his point was that the n-word should not be used. Volokh also points out another similar situation, the famous moment in Monty Python’s Life of Brian when a crowd stones anyone who uses the word Jehovah even when they are trying to use the word to make the point that it shouldn’t be said! Such nightmarish due process violations and abuse of language always bring to mind Kafka and Orwell, and for me, of course, Lenny Bruce and George Carlin.
But we needn’t appeal to fiction to find comparisons. The 1980s and ’90s were filled with examples similar to what happened to Hindley. Take the case of Professor Graydon Snyder at the Chicago Theological Seminary (CTS), who was severely disciplined for a lecture he had been giving for 34 years involving a sexual story from the Talmud. After a female student complained to the university, he was placed on probation, ordered to undergo psychotherapy, advised not to spend time alone with students or staff, and barred from teaching introductory Bible courses, and CTS sent a letter to students and faculty alleging that sexual harassment had occurred.
Or who could forget the case of Professor Donald Silva at the University of New Hampshire, who was disciplined by the university for using the term “vibrator” in a writing class to refer to a barbershop implement that vibrated? Dr. Silva took his case to U.S. District Court, and in September 1994 he won and was reinstated as a classroom professor.
Silva’s case is only one of several cases that dealt with the attempt to use “harassment” to punish classroom speech, and the cases generally favored the professors so long as the speech was deemed to be “germane” to the class. Hardy v. Jefferson Community College is especially illuminating here because in that case, a court found that a discussion of epithets (racial and otherwise) that was germane to the class enjoyed the protections of free speech and academic freedom. While Brandeis is a private college, it should understand that courts have recognized that academic freedom—a principle that Brandeis claims to value—should protect discussions like Hindley’s.
And FIRE, of course, need not look back into the ’80 and ’90s for examples of the abuse of harassment rationales to punish un-PC speech. We can cite dozens, if not hundreds, of examples. Early on in FIRE’s history, we came to the defense of Professor George Fletcher at Columbia, who was investigated for harassment for an “offensive” law exam question. Years later, we successfully defended a professor at Bellevue Community College who faced similar charges for an “offensive” exam question of his own, to name just two cases.
Colleges’ tendency to hide behind federal law—claiming that the Department of Education’s Office for Civil Rights’ (OCR’s) regulations against harassment required such actions—became so bad that in 2003 the OCR felt compelled to issue a “letter of clarification” to colleges across the country. In that letter, then-Assistant Secretary Gerald A. Reynolds wrote:
OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.
This letter could not be clearer. The OCR sought here to deny schools, for all time, the argument that “the federal government is making me do it” when private universities decide to punish clearly protected speech as harassment. But somehow, many schools still try to use federal law as an excuse to punish professorial or student speech as “harassment” even when it comes nowhere near the federally defined parameters of that offense.
So what is going on here? Is Brandeis simply unaware of the law? Is Brandeis unaware that these types of abuses have happened for over two decades—while the public has consistently condemned them as political correctness run amok? Is Brandeis—a college named for perhaps the Supreme Court’s most influential champion of freedom of speech—simply unaware that education almost necessarily involves students occasionally being offended?
I doubt it. I have no idea whether Brandeis simply has a grudge against Professor Hindley or if it is simply too arrogant to admit that it has done something wrong here, but I do not believe that administrators can continue to plead innocence in the face of the facts, the virtually nonexistent procedure, and the condemnation in the media and by students and faculty. Brandeis has made a terrible mess here. It is time to clean it up.