Commentary. In the last few years a number of college campuses have experienced an alarming increase in various racial incidents, from racial graffiti in dorms to abusive racial slurs and epithets on campus. As a result, several universities have adopted policies prohibiting "discriminatory verbal harassment" or "personal vilification." Brandeis is no exception. Eight years ago a paragraph was added to a section of the Student Handbook on "Rights and Responsibilities," Section 6, Paragraph 6.4. The Paragraph reads in full as follows:
Racial Harassment: At Brandeis University, any faculty member, employee, or student who racially harasses a member of the University community shall be subject to disciplinary action, up to and including termination of employment or dismissal of a student from the University. Derogatory comments, epithets, or other behavior are considered racial harassment if the conduct:
(A) demeans the race or ethnicity of the individual or individuals; and
(B) creates an intimidating, hostile or dangerous environment for education, University related work, living, social, or other University authorized activity.
The Brandeis provision on derogatory comments and racist epithets is not an isolated statement of University policy. It is articulated as part of a number of concerns. It appears in a Section entitled "Policies on Equal Opportunity and Affirmative Action," and directly follows the University's policy on sexual harassment. It figures as part of the University's commitment to the principles of equal protection and non-discrimination. The University is equally committed to principles of free inquiry and free expression, but that commitment is articulated elsewhere.
Since incidents in recent years on college campuses throughout the country have revealed some doubt and disagreement about what this fundamental standard might entail for members of the University community in the senstive area where the right of free expression can conflict with the right to be free from invidious discrimination, Paragraph 6.4 is intended to provide students, adminstrators, faculty, and staff with some guidance in this area. But does that guidance constitute an appropriate (and constitutional) limitation of free expression?
Part of the function of the criminal law is to prohibit and punish harm that is inflicted on a person against his or her will. Racist and anti-semitic slurs and epithets can inflict real harm that is non-trivial and long-lasting. Why not restrict and/or limit the use of racist and anti-semitic insults and slurs whose primary purpose is to hurt, rather than to inform?
Why shouldn't the harms arising out of (1) the danger of immediate violence; (2) the psychological and emotional hurt that a person subject to abuse may suffer; (3) the general offensiveness that the use of such language may cause; and (4) the destructive long-term effects from the attitudes reinforced by abusive remarks count as harms that the criminal law ought appropriately to prohibit and punish? These harms can be just as painful as a blow to the head or a punch in the stomach. They can be more deeply felt and cause more permament damage.
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