The American Constitution Society’s Harvard Law & Policy Review recently ran an engaging interview with Columbia University President Lee Bollinger in which Bollinger discusses free speech issues on both a national and global level. I recommend reading it in full.
At one point in the interview, HLPR asks Bollinger about the United States Court of Appeals for the Sixth Circuit’s recent holding in Ward v. Polite, arising from a claim by former counseling graduate student Julea Ward against Eastern Michigan University. (For more on that case, read Will Creeley’s two-part breakdown here and here.) Regarding the Sixth Circuit’s opinion, HLPR asked Bollinger if he thought the legal standard of "legitimate pedagogical concerns" reached by the Supreme Court of the United States in Hazelwood v. Kuhlmeier (1988), which gave K-12 schools broad authority to restrict student expression, should apply to colleges. Bollinger responded (emphasis added):
I definitely do not think, and have not thought, it should apply to public colleges and universities. The recognition for many decades has been that universities are basically dealing with adults, and our general conception of free speech and press very much applies in that context. Sure, there may be slight variations, to accommodate the purposes and interests of institutions of higher education, but not very many. And I don’t think that Hazelwood’s sensitivity-to speech that might be inappropriate or make people uncomfortable-would in any way apply in the university context. So I would be deeply surprised if that were the ultimate outcome in a case like that.
These welcome words on the necessity of free speech in the college setting stood out to us, and echo Will’s concerns. They also stood out to KC Johnson, blogging for Minding the Campus, who went to our Spotlight database to see how well Columbia does in meeting its free speech obligations. Alas, as Johnson writes, "not only has Columbia not earned a FIRE green-light rating, it received a red-light rating, for speech code policies that ‘both clearly and substantially restrict freedom of speech.’"
For instance, at Columbia, the sexual harassment policy forbids "unwanted sexual attention," even if the harassment was "unintentional." In other words, in good faith, a male student could ask a female student for a date–"sexual attention"–and be committing sexual harassment if the female student didn’t want to be asked.
Or take Columbia’s "gender-based misconduct" policy, which among other things prohibits "inappropriate sexual innuendoes or humor."
Or take Columbia’s "hate crimes/bias-related incidents" policy, which targets "behavior motivated by hate," even, it seems, if the behavior itself doesn’t violate any other university policy or criminal law. The reason for such a sweeping definition, the policy explains, is to address the "deep pain" such actions "have on our entire community." Could a Columbia student speaking out against the use of racial preferences in admissions be deemed guilty of "behavior motivated by hate"?
All of these policies, Johnson points out, suffer a common ailment: They condescend to and infantilize Columbia’s adult student population, institutionalizing hypersensitivity and an illusory right "not to be offended." This mentality manifested itself, for example, in 2006, when Columbia suspended its men’s club ice hockey team for printing a humorous recruitment flyer after some students found it offensive and demanded the administration take action against the team. Such cases (and this wasn’t the only one at Columbia) epitomize Johnson’s observation that "Bollinger doesn’t consider students at his own university to be ‘adults,’ and therefore free speech rights at Columbia … must be checked at the gates on 116th Street."
Again, I encourage Torch readers to check out Bollinger’s interview in full. Hopefully Bollinger himself will go back and give it a read as well, and after doing so pay a visit to Columbia’s Spotlight page and case pages to see where Columbia under his leadership has fallen short of its promises of free speech. If he really believes his statement, made very early in the interview, that "We can expect censorship anywhere to be censorship everywhere," then there’s plenty of cleaning up he can do in own backyard.