Daniel Chapman is a FIRE summer intern.
The Department of Education’s Office for Civil Rights (OCR) has made headlines after releasing a “blueprint” for campus sexual misconduct policies that broadly redefines sexual harassment, ostensibly under OCR’s authority to enforce Title IX. Administrators are now presented with a choice between upholding the First Amendment or abridging free speech in order to avoid investigations, fines, and potentially loss of federal funding. This isn’t the first time OCR has put administrators in this sort of dilemma over Title IX, and the restriction of protected speech in the name of complying with supposed statutory obligations is not limited to Title IX. Universities have an obligation to comply not only with Title IX, which prohibits discrimination on the basis of sex, but also with Title II, which bans discrimination based on disability, and Title VI, which forbids discrimination on the basis of race. Efforts to comply with Title IX have typically involved promoting gender equality and addressing sexual misconduct on campus, while Title VI compliance efforts often take the form of programs to promote diversity.
In recent years diversity has become a buzzword in higher education. Offices and training programs having to do with diversity have sprung up at virtually every college and university throughout the country. To many administrators, promoting diversity tends to mean promoting and protecting a diversity of nationalities, ethnicities, and races on campus. Efforts to protect this form of diversity range from implementing harassment policies, holding seminars, creating academic programs focusing on various racial and ethnic groups, or utilizing variants of the well-known “Tunnel of Oppression” program, in which students participate in interactive scenes and are led to infer extreme lessons about how oppression operates in society such as “white people believe all black women are ‘welfare mamas.’” While many campuses engage in diversity initiatives that are well-designed, effective, and conducive to free speech, many do not. Programs that are not carefully designed often serve to contradict their own goals and put freedom of speech and conscience in the university at risk.
A diverse campus community is one where people can freely interact with others from different backgrounds and ideologies, but some universities have turned diversity on its head. Take, for instance, FIRE’s cases at Arizona State University and Marshall University. Both universities restricted some courses on the basis of race; Arizona State offered a course on “Navajo History” only open to Native Americans, while Marshall University advertised a “University Studies 101” course as open only to African-American students. One need only to imagine a “White History” course limited to Caucasian students to see the inherent problems with such restrictions. Both universities quickly abandoned the racial restrictions on enrollment after FIRE exposed them, but these cases serve as a sharp reminder of how the most laudable goals can spur the creation of policies and practices that undermine the values they support and restrict fundamental rights in their name.
A case in which a university goes as far as creating race-specific enrollment criteria is rare these days, although the fact that it happens at all is rather alarming. A much more common example of how diversity programs can contradict their own goals is the implementation of policies which are ideologically exclusionary in practice. These typically come in the form of overbroad harassment and discrimination policies. Though universities won’t generally say it this way, the argument for these policies often rests on the notion that diversity means creating an environment in which students aren’t exposed to ideas or speech which may offend their sensibilities, therefore supposedly making them more comfortable.
A notable example is the case in which a student-employee was found guilty of racial harassment for reading a book titled Notre Dame vs. the Klan: How the Fighting Irish Defeated the Ku Klux Klan in the presence of his co-workers, simply because the book had an image of KKK members on the cover. Policies which proscribe speech presume the groups they protect are incapable of hearing and appropriately responding to speech directed towards them. Further, those harboring the kinds of prejudice that universities are attempting to weed out lose the opportunity to voice their beliefs and to have them subsequently challenged, debated, and refuted.
Sheltering students from offensive language and so-called “hate speech” will leave them unprepared if they ever face them outside the campus community (and they will), and it deprives the university itself of a valuable “teachable moment.” Institutions with these types of policies and attitudes destroy the environment of free expression that is necessary if they really want issues of prejudice, racism, and many other -isms to be addressed rather than silently forgotten by the majority while a muted minority continues to harbor those beliefs. Exposure to beliefs that are different from your own as well as to people who are different from you are two essential elements of diversity and the larger college experience. To deny one in the name of the other—at the price of the right to free speech—is not a practice suitable for an institution of higher education.