Campus Speech Codes:
The Threat to Liberal Education
The John Marshall Law Review (Spring 1994)
Copyright (c) 1994 The John Marshall Law School
The John Marshall Law Review
27 J. Marshall L. Rev. 709
LENGTH: 23673 words
SPEECH CODES: THE THREAT TO LIBERAL EDUCATION
* J.D. 1993, University of Iowa. The author would like to thank Professor
William Buss for his thoughtful comments on the first and second drafts. This
article is dedicated to Charles H. and C. Elaine Fleischer.
... In response to racial tensions on campus, many universities have enacted
regulations restricting racist speech. ... Fourth, any hate speech regulation
upheld under the fighting words doctrine would not alleviate the alleged harm
caused by racist speech. ... However, to be upheld under the fighting words
doctrine, a regulation would have to be so narrowly drawn that it would not
target the harm allegedly caused by racist speech. ... Campus
speech code proponents, however, contend that racist speech incapacitates minorities,
causing them either to flee or to remain silent. ...
Speech code proponents contend that only hate speech directed at historically oppressed
groups should be regulated. ... Thus, to rely on the fighting words doctrine,
speech code proponents must have confidence that the discretion of enforcement personnel
will be employed equitably. ... However, such a restriction would have to be
content neutral. ...
Speech code proponents claim that hate speech is ubiquitous and that it incites racial
Speech code proponents would argue that the harm caused by hate speech is uniquely
The purpose of Newspeak was not only to provide a medium of expression for the
world-view ... but to make all other modes of thought impossible. It was
intended that when Newspeak had been adopted once and for all ... a heretical
thought - that is, a thought diverging from the principles of Ingsoc - should
be literally unthinkable.... This was done partly by the invention of new
words, but chiefly by eliminating undesirable words....
-George Orwell, Nineteen Eighty Four
In response to racial tensions on campus,
n1 many universities
[*710] have enacted regulations restricting racist speech.
"Racist speech" refers primarily to speech that denigrates persons on the basis of their race
or ethnic origin.
n2 Proponents of
speech codes argue that racist speech by its very nature causes discrete and serious harm
n3 They claim that such speech inevitably
"creates an intimidating, hostile or demeaning environment for education,
university-related work, or other university-authorized activity."
These advocates, many of whom are First Amendment scholars, recognize that
speech codes interfere with freedom of expression.
n5 They contend that narrowly drafted codes will not only minimize any chilling
effect on speech, but will also facilitate debate and discussion in the
academic context. In their opinion, racist speech constitutes a mechanism of
oppression that silences the voices of minorities. Racist speech sends the
painful message, apparently believed by the speaker, that persons of color are
inferior to whites.
n6 Advocates contend that
speech codes will ensure that the academic environment is characterized by civility and
n7 So great is the harm and, so ubiquitous is the nature of racist speech that
the value of free expression must be balanced against the equality value of the
n8 To ensure equality of educational opportunity for
"victim groups," universities must prohibit the expression of racist sentiments.
A small number
n9 of scholars resists the call for censorship. They argue that campus bans on
racist speech will inhibit the exchange of controversial ideas and undermine
the university's commitment to unfettered inquiry. These scholars believe that
[*711] codes will not remedy the underlying causes of racial problems but may actually
exacerbate latent tensions between students.
The civil libertarians who resist the call for censorship are not convinced by
speech code proponents' concern for narrow drafting. They argue that to mitigate the
unique injury suffered by victims of hate speech, any regulation would have to
sweep broadly and include not only vicious epithets, but derogatory ideas and
opinions as well.
n11 Such broad regulations could greatly inhibit the expression of controversial
"racist speech" is a generic term that includes speech that demeans others on the basis of
gender, sexual orientation, physical ability and attractiveness, religion,
marital status, and even, in some cases, Vietnam-era veteran status.
n12 Some commentators fear that hate speech regulation could be used to impose a
n13 on campus, the goal of which is to render illegitimate ideas that are
disfavored by liberal academics.
n14 Thus, the great danger is that regulation of hate speech will not only chill
freedom of intellectual inquiry and impede discussion of controversial ideas,
but that it will actually render certain ideas
"beyond the pale."
n15 Such a result would threaten
[*712] American universities in the 1990s no less than efforts to establish a
political orthodoxy threatened the academic setting in the 1950s and 1960s.
The regulation of hate speech through
speech codes poses a serious threat to freedom of speech and intellectual inquiry. Section
I argues that
speech codes are inconsistent with traditional First Amendment doctrine. Section II
analyzes in detail the arguments of Charles H. Lawrence and Mari Matsuda, two
of the most influential
speech code proponents. Section III demonstrates that hate speech regulations, which
reflect the movement to impose a new secular orthodoxy on campus, represent a
grave threat to liberal education.
I. First Amendment Doctrine Applicable to
Freedom of speech is not absolute. In order to justify the regulation of hate
speech, a university could turn to the following speech-limiting doctrines: (1)
Fighting Words; (2) Time, Place, and Manner Restriction; (3) Clear and Present
Danger; (4) Group Defamation; and (5) Intentional Infliction of Emotional
Distress. This section argues that only the most narrowly drawn hate speech
regulation could be upheld under any of these doctrines. Such a regulation,
however, would not effectively prevent the harm caused by racist speech.
A. The Fighting Words Doctrine: Chaplinsky v. New Hampshire
If you are going to call a man a bastard, be prepared to prove it on his teeth.
[Free speech] may indeed best serve its high purpose when it induces a
condition of unrest, creates dissatisfaction with conditions as they are, or
even stirs people to anger.
- Terminiello v. Chicago
The fighting words doctrine was first articulated over 40 years
[*713] ago in Chaplinsky v. New Hampshire.
n18 The Chaplinsky Court defined fighting words as
"those which by their very utterance (1) inflict injury or (2) tend to incite an
immediate breach of the peace."
n19 In upholding the conviction of Chaplinsky, a Jehovah's witness who had called
a police officer a
"damned Fascist" and a
"God damned racketeer," the Supreme Court appeared to be establishing a two-part definition. However,
the Court applied only the second half of the definition because that is how
the State Supreme Court had interpreted the statute.
n20 The state was concerned, not with emotional injury, but with a potential
breach of the peace.
speech codes claim that hate speech regulation could be upheld under the fighting words
n22 Reliance on this controversial, forty-year old doctrine is misplaced for
several reasons. First, the Chaplinsky court was concerned not with the
emotional impact of epithets, but with a potential breach of the peace. Second,
subsequent decisions have narrowed significantly the fighting words doctrine.
Third, many commentators and some courts consider that the doctrine is no
longer consistent with First Amendment principles. Fourth, any hate speech
regulation upheld under the fighting words doctrine would not alleviate the
alleged harm caused by racist speech. Indeed, the doctrine could easily be used
against unpopular speech by minorities.
Since Chaplinsky, the Supreme Court has narrowed and clarified the fighting
words doctrine to such an extent that it would not apply to most hate speech
regulation. The Court has emphasized that the definition is limited to the
n23 In order to meet this definition, the words must
"naturally tend to provoke violent
n24 and the fighting words must be
"directed to the person of the hearer."
n25 In rejecting the common law definition of
"breach of peace," the Court has established a
"stringent" definition of
"breach of peace."
n26 Fighting words must not merely breach decorum, but must also tend to bring the
addressee to fisticuffs.
n27 Thus, hate speech regulation, such as those at the University of Wisconsin,
University of Michigan, and Stanford University, which prohibit words that
"create a hostile environment" would not be upheld under the fighting words doctrine. Indeed, in striking
down a narrowly-drafted
speech code, the District Court of Wisconsin held that
"it would be improper ... to expand the Supreme Court's definition of fighting
words to include speech which does and does not tend to incite violent reaction."
Not only has the fighting words doctrine been severely limited, but there is
some indication that it may no longer be good law. Since Chaplinsky, the
Supreme Court has overturned every conviction based on the fighting words
n29 Gerald Gunther stated that,
"one must wonder about the strength of an exception which, while theoretically
recognized, has ever since 1942 not been found to be apt in practice."
n30 Professor Gard claims that the fighting words doctrine is a
"quaint remnant of earlier morality that has no place in a democratic society
dedicated to the principle of freedom of expression."
Under certain, limited conditions, racial or ethnic slurs might fall within
the fighting words doctrine. However, to be upheld under the fighting words
doctrine, a regulation would have to be so narrowly drawn that it would not
target the harm allegedly caused by racist speech. The harm that
speech code advocates want to avoid is not the violent outburst; rather, it is the
perniciousness and ugliness of the ideas expressed that
speech code advocates seek to
[*715] avoid. The Court, however, recognizes the importance of protecting offensive
and unpopular speech.
n32 Even the most vituperative use of a vile racial epithet entails the expression
of an idea, i.e., that the addressee is inferior and unwanted on campus.
The logic of the fighting words doctrine is inapplicable in the racial
context. The doctrine aims to prevent a violent response on the part of the
addressee, not emotional injury. Campus
speech code proponents, however, contend that racist speech incapacitates minorities,
causing them either to flee or to remain silent.
n34 The fighting words doctrine would not apply in such instances. Moreover, given
the fact that the Supreme Court has emphasized that the words must have a
"direct tendency to cause acts of violence by the person to whom individually
the remark is addressed,"
n35 the fighting words doctrine would not apply to situations, which
speech code proponents claim are equally painful, where a student overheard derogatory
comments based on race.
Speech code proponents contend that only hate speech directed at historically oppressed
groups should be regulated.
n37 However, a recent Supreme Court decision suggests that the fighting words
doctrine cannot be limited to words or symbols that arouse anger on the basis
of race, color, or national origin. In R.A.V. v. City of St. Paul, the majority
of the Court
n38 struck down an ordinance that
[*716] banned the display of a symbol which one knows or has reason to know arouses
anger, alarm, resentment in others on the basis of race, color, creed,
religion, or gender.
n39 The majority held that the ordinance violated the principle of content
n40 Justice Scalia noted that
"the First Amendment does not permit St. Paul to impose special prohibitions on
those speakers who express views on disfavored subjects"
n41 and that
"selectivity of this sort creates the possibility that the city is seeking to
handicap the expression of particular ideas."
n42 One commentator contends that the
"Court's holding makes authoritative the thesis ... that under the law of the
First Amendment, virtually any campus ban on racist speech imposed by a public
university will be found to be unconstitutional."
Given the inherent danger of abuse of this doctrine, it seems strange that
minority spokesmen would advocate reliance on it. Professor Gard notes that
"the problem of discriminatory enforcement is particularly acute in the fighting
words context. [A real danger] is that the law will be selectively invoked
against minority groups ... or speakers" who espouse views unpopular with those in power.
n44 Indeed, the history of this doctrine indicates that blacks are often
prosecuted and convicted at the state level under the fighting words doctrine.
n45 The doctrine has been applied broadly by the lower courts to include speech
critical of government and law enforcement policies.
n46 It should be remembered that Chaplinsky involved the arrest of a Jehovah's
Witness who was publicly rebuking the local government. Thus, to rely on the
fighting words doctrine,
speech code proponents must have confidence that the discretion of enforcement personnel
will be employed equitably.
B. Time, Place, and Manner Restriction
(W)e are often
"captives' outside the sanctuary of the home and subject to objectionable
-Rowan v. United States Post Office Department
Speech may be regulated by reasonable time, place, and manner restrictions.
n49 To be upheld under this doctrine, the regulation must be: (1) content neutral;
(2) narrowly tailored to serve a significant government interest; and, (3)
leave open alternative channels of communication.
n50 This doctrine permits regulation, but not prohibition of speech.
Some commentators advocate the regulation of hate speech in order to protect
the captive audience.
n51 Such a regulation would involve the doctrine of a reasonable time, place, or
manner restriction. Only the most narrowly tailored
speech code limited to the student's dormitory room would be upheld under this doctrine.
Such a regulation would not be effective at preventing the harm caused by
Under this doctrine, the Court has recognized that an unwilling listener has
an interest in avoiding intrusive speech. Although the regulation of otherwise
protected speech has been upheld when the unwilling listener cannot avoid the
n52 the most
"reasonable" regulation applies to speech that invades the privacy of the unwilling
listener's home. In upholding a prohibition of
"focused picketing" directed against a person in front of that person's home, the Court noted that
"although in many locations, we expect individuals simply to avoid speech they
do not want to hear, the home is different ... individuals are not required to
welcome unwanted speech into their homes."
n53 Thus, a university regulation that permitted a student to exclude unwanted
speech from his dormitory room, or perhaps even from the dormitory as awhole,
would probably be constitutional.
n54 However, such a restriction would have to be content neutral. It would exclude
all unwanted speech, racist or
[*718] otherwise. Moreover, the racist message could not be suppressed since
alternative channels of communication would have to remain available.
Charles Lawrence contends that reasonable time, place, manner restrictions
should apply throughout the campus.
n55 Such an assertion misapplies the doctrine, misconstrues the nature of the
university, and ignores the rather onerous burden the Court places on an
individual to avoid unwanted speech outside of the sanctuary of the home.
n56 The campus is not a home and students, including minorities, are not a captive
audience on the university campus. The university cannot assert an interest in
protecting the privacy of the home once the student leaves his room. At that
point, the doctrine of reasonable time, place, and manner restriction is no
longer applicable. Any selective targeting of racial epithets would violate the
principle of content-neutrality. Moreover, outside of their rooms, students
would have an obligation to avoid unwanted speech.
n57 Obviously, the Court, applying traditional First Amendment doctrine, has more
confidence than Lawrence in the ability of minority students to defend
themselves verbally against offensive ideas and expressions.
C. Clear and Present Danger: Brandenburg v. Ohio
(T)he fitting remedy for evil counsels is good ones.
[il13.]-Whitney v. California
Brandenburg represents the culmination of the Court's attempt to limit
dangerous expression without chilling unpopular speech.
n60 The Court held that the state could only outlaw speech
[*719] advocating the use of force or illegal action
"where such advocacy is directed to inciting or producing imminent lawless
action and is likely to incite or produce such action."
n61 Subsequent cases revealed that both the
n62 and the
n63 tests would be rigorously applied. The utterance must be an incitement and not
just unpopular political speech.
Speech code proponents claim that hate speech is ubiquitous and that it incites racial
n65 Hate speech restrictions might therefore fall under the Brandenburg v. Ohio
n66 However, not only is this doctrine inapplicable to most campus situations, but
it would not alleviate the harm caused by racist expressions.
speech code under Brandenburg would have to be narrowly drafted. It could only target hate
speech directly advocating imminent violent action against minorities.
Moreover, such speech would have to be considered likely to produce violent
action. Although racially charged college campuses have witnessed some violent
outbursts, the vast majority of incidents do not involve incitement, but rather
racial slurs, epithets, derogatory comments, offensive jokes, and graffiti.
speech code proponents cite the debilitating emotional effect of hate messages as the most
serious problem. Unfortunately, Brandenburg would not offer any protection to
the psyche of minority students.
D. Group Defamation: Beauharnais v. Illinois
If there be minority groups who hail this holding as their victory, they might
consider the possible relevancy of this ancient remark:
"Another such victory and I am undone.'
-Beauharnais v. Illinois
n68 (Black, J., dissenting)
Some commentators contend that university regulation of racist speech could be
upheld under the theory of group defamation as articulated in Beauharnais v.
n69 The Beauharnais Court upheld an Illinois group criminal libel law that
prohibited any publication that
"portrays depravity, criminality, unchastity, or lack of virtue of a class of
citizens, of any race ...."
n70 Beauharnais, president of the White Circle League, was convicted for
distributing leaflets that depicted blacks in a derogatory manner and appeared
to advocate violence against them.
However, commentators' reliance on Beauharnais is misplaced for several
reasons. First, unless the college setting is characterized by extreme racial
violence, the rationale underlying Beauharnais is inapplicable. Second,
subsequent speech-protective cases suggest that Beauharnais is no longer good
law. Third, ordinances prohibiting group libel are inconsistent with First
Amendment principles. Fourth, a group defamation law could actually facilitate
the propagation of racist material.
The rationale underlying the Beauharnais decision is inapplicable in the
average college setting. The Beauharnais Court was concerned that the
prohibited utterances would incite racial violence.
n72 At the time of the decision, race relations in Chicago were characterized by
strife and violence.
n73 There is some indication that racist attacks on blacks followed the
dissemination of hateful propaganda.
n74 While the atmosphere on American college campuses is racially charged, one
cannot compare it to Illinois' history of racial strife
"and its frequent obligato of extreme racial and religious propaganda."
n75 The vast majority ofracial incidents on campus involve slurs, epithets,
offensive jokes, and derogatory language, not violence.
n76 Since Beauharnais, courts have been reluctant to uphold group defamation laws
in the absence of fears of violence. In striking down a Skokie ordinance based
on the Beauharnais law, the Seventh Circuit rejected the Village's contention
"Beauharnais implicitly sanctions prohibiting the use of First Amendment rights
to invoke racial ... hatred even without refer
[*721] ence to fears of violence."
Subsequent speech-protective decisions suggest that Beauharnais may no longer
be good law. Libel was once considered unprotected speech.
n78 The Beauharnais Court accorded great deference to both the Illinois'
legislature's assessment of the potential for violence
n79 and its power to define libel.
n80 However, in New York Times Co. v. Sullivan,
n81 the Court held that libelous speech should be afforded some protection. The
Court established the stringent requirement of
"knowing falsity or reckless disregard for the truth" in a defamation action brought by a public official.
n82 The Court, recognizing the importance of
"uninhibited, robust" discussion of public issues, was concerned that broad definitions of libel by
states would chill freedom of speech.
n83 This ruling undercuts the rationale on which Beauharnais is based. Thus, the
Seventh Circuit, in striking down an Illinois group libel statute based upon
the Beauharnais ordinance, shared the doubts of the Eighth Circuit
"that Beauharnais remains good law at all after the constitutional libel cases."
Proponents of hate speech regulation may contend that New York Times does not
apply to the case of group libel. They could argue that the Court was merely
concerned that broad definitions of libel by states would chill discussion of
public issues and inhibit criticism of government officials.
n86 However, not only has the
[*722] Court extended the stringent
"actual malice" requirement to cases involving public figures, but in cases involving
defamatory statements about a private figure, the state cannot establish a
standard of fault below negligence.
Group defamation statutes are inconsistent with First Amendment principles.
Statements that defame groups convey opinions or ideas on matters of public
n88 The offensiveness of such expression is constitutionally irrelevant. Indeed,
"if there is a bedrock principle underlying the First Amendment, it is that the
Government may not prohibit the expression of an idea simply because society
finds [it] offensive or disagreeable."
n89 It should not be forgotten that Beauharnais was attempting to influence public
policy by disseminating his offensive views in the form of a petition to city
officials. Moreover, any group defamation law, even if narrowly drafted, could
still chill speech. The Seventh Circuit, in striking down a group libel law
similar to the Beauharnais ordinance as overbroad,
n90 noted that the law
"could conceivably be applied to criminalize dissemination of The Merchant of
Venice or a vigorous discussion of the merits of reverse racial discrimination
By chilling speech, group libel laws could mitigate the harm caused by racist
expression: minorities would not be exposed to offensive notions of
Speech code enthusiasts could point to such regulations as evidence that societal response
to racism has moved to the public realm.
n92 However, the very existence of such paternalistic laws might have the perverse
effect of engendering feelings of inferiority. Shelby Steele notes that, unless
confronted openly, the notion of inherent racial inferiority haunts blacks.
"The families of [black] students will have pounded into them the fact that
blacks are not inferior. And probably more than anything, it is this pounding
that finally leaves a mark. If I am not inferior, why
[*723] the need to say so?"
The enforcement of group libel ordinances would facilitate the propagation of
racist ideas. Defamation encompasses false statements of fact made without a
good faith belief in their truth. Minority psyches would not be assuaged by a
trial process in which the defendant could
"introduce into evidence every piece of hate-literature" available in order to prove his good faith belief in the truth of the
n94 Indeed, Lawrence's suggestion of an
"actual malice" requirement as an element of the crime would only exacerbate this problem.
n95 The trial would provide the defendant with a public forum and media coverage
to air his derogatory opinions.
n96 If convicted, an appeal will provide expanded air time for the defendant's
n97 An acquittal could be interpreted by minorities as state endorsement of the
Given the inherent risk that group libel statutes could be enforced against
minorities and unpopular groups, it seems ironic that victim group spokesmen
would advocate their use.
n98 Indeed, it should not be forgotten that the Beauharnais statute was used in
the 1940s to harass Jehovah's Witnesses, a highly unpopular minority group.
n99 As Justice Black noted in his dissent,
"the same kind of state law that makes Beauharnais a criminal for advocating
segregation ... can be utilized to send people to jail ... for advocating
equality and nonsegregation."
n100 The existence of group libel ordinances does not guarantee that they will not
be used against those groups in most need of protection.
As argued above, hate speech regulation would be upheld under Beauharnais only
in the most extreme situation. One would have to imagine a campus with a
history of racial strife and violence. There would have to be evidence that the
prohibited utterances tend to cause violence. However, an ordinance prohibiting
group libel would not be expected to ameliorate such a dire situation. Indeed,
the Beauharnais Court, while not questioning the
[*724] wisdom of the law, certainly questioned its effectiveness:
"It may be argued, and weightily, that this legislation will not help matters."
E. Intentional Infliction of Emotional Distress
Against a large part of the frictions and irritations and clashing of
temperaments incident to participation in a community life, a certain
toughening of the mental hide is a better protection than the law could ever be.
Racist speech hurts.
n103 Accordingly, some universities are justifying hate speech regulation based on
the common law tort of intentional infliction of emotional distress.
n104 This approach focuses on the injury caused by racist speech: the emotional or
psychological harm that interferes with studies. However, reliance on this
common law tort is misplaced for several reasons. First, recent Supreme Court
decisions suggest that this tort should never apply to words. Second, the
highly subjective nature of the inquiry could lead to abuse of this doctrine,
especially against minorities. Third, in order to avoid the possibility of
abuse, a regulation would have to be so narrowly drafted that it might be
In Hustler Magazine v. Falwell, the Court precluded recovery in a state
emotional distress action for an ad parody which could not reasonably have been
interpreted as factual.
n105 The Court applied the New York Times standard
n106 to ensure that public debate
[*725] will not suffer for lack of imaginative expression or of rhetorical hyperbole.
n107 The Court noted that
"even when a speaker or writer is motivated by hatred or ill-will, his
expression [is] protected by the First Amendment...."
n108 The Court suggested that even if it can be shown that the defendant intended
to inflict emotional distress, recovery will not be allowed unless the New York
Times standard is met.
Speech code proponents could argue that the Hustler Court was concerned about the possible
chilling effect on speech critical of public officials and public policy.
However, the Court indicated that,even with regard to non-public plaintiffs, it
would strictly construe the tort of intentional infliction of emotional
n110 The Court noted with concern the inherent subjectivity of the
"outrageousness" standard, even in the realm of
n111 The Court emphasized that the emotional reaction of the audience is an
insufficient justification for not protecting speech.
n112 Moreover, in a recent case the Court stated in dictum that Hustler provides
"protection for statements that cannot
"reasonably be interpreted as stating actual facts' about an individual."
Many commentators note that the inherent subjectivity of the tort of
intentional infliction of emotional distress could result in this doctrine
being applied at the expense of victim group members. Professor Gard believes
"this innate vagueness ... will inevitably result in the imposition of judges'
selective linguistic preferences on society, discrimination against ethnic and
racial minorities, and ultimately the misuse of the rationale to justify the
censorship of the ideological content of the speaker's message."
[*726] Indeed, for this very reason, Stanford University declined to base its hate
speech regulation on this tort model.
n115 Moreover, the University of Texas, which based its code on this doctrine,
"there can be no guarantee as to the constitutionality of any university rule
bearing on racial harassment and sensitive matters of freedom of expression."
In order to minimize potential abuse of the tort of intentional infliction of
emotional distress, the University of Texas narrowly drafted its ordinance. Not
only is the application of the regulation limited to race, color or national
origin, but it requires both an intention to harass and the causation of severe
n117 One commentator believes that these stringent requirements may render the
n118 As drafted, the Texas ordinance would not prevent minority exposure to
non-hostile, but equally damaging, messages of racial inferiority. Moreover,
the Texas code is stricter than
Section 46 of the Restatement (Second) of Torts.
A review of the cases under
Section 46 of Restatement (Second) of Torts reveals the difficulty in obtaining relief for offensive speech and suggests
that this model may not be appropriate for the university setting. Section 46
imposes liability for damages on a defendant who
"by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another ...."
[*727] Although isolated utterances of racial epithets are actionable, the courts are
most willing to grant relief when plaintiff is either a customer
n121 or an employee.
n122 Moreover, the vast majority of successful cases have involved allegations of
"speech plus conduct," rather than pure speech.
n123 Although proving the requisite intent is not unduly burdensome, the courts
strictly construe the requirements of extreme and outrageous conduct and severe
n124 Successfully convincing the trier of fact that the distress was of the
"severity" often turns on the extent of physical manifestations of the impact of the
n125 Thus, to be effective the tort of intentional infliction of emotional distress
seems to require that the targeted individual bear his or her psychic scars in
Section 6-103 of the Model Communicative Torts Act (Model Act) is even more
n126 Concerned about the chilling effect on protected speech, the drafters of the
Section limited its application to race, sex, ethnicity or religion and
"a pattern of communication evincing a continuity of purpose." Unlike the common-law tort of intentional infliction of emotional distress,
Section 6-103 would not apply to isolated utterances of racial epithets. Sec
[*728] tion 6-103 would be even less effective at protecting minorities from the harm
of racist speech.
II. Outsider Jurisprudence: Matsuda and Lawrence
The experience of racism ... makes the group's consciousness the victim's
Calling a white a
"honky' is not the same as calling a black a
-Professor Robert Rabin
The above discussion demonstrates that hate speech regulations would not fare
well under traditional Constitutional doctrine. This section will consider the
perspectives of Mari Matsuda and Charles H. Lawrence, two leading advocates of
"outsider jurisprudence." These scholars suggest that
n128 regulations that target the
n129 of hate speech could and should be upheld. This section, however, will
demonstrate that reliance on their arguments is misplaced. First, these
advocates misconstrue First Amendment doctrine. Second, contrary to their
assertions, the advocates of outsider jurisprudence intend to prohibit
offensive ideas and opinions, as well as racial epithets. Such a result is not
only inconsistent with the advocates' claims, but also with freedom of speech.
Finally, university regulations codifying the position of these advocates
represent a threat to liberal education.
A. Matsuda: The Victim's Story
n131 contend that any First Amendment tension caused by the emergence of
speech codes can be resolved by
"considering stories from the bottom."
"Armed with stories from human lives," Mari Matsuda and Charles H. Law
[*729] rence, both of whom are members of victim groups,
n133 intend to take the reader where the law allegedly never ventures: the
"places where women, children, people of color, and poor people live."
n134 Only by listening to the
"sorrow songs" of
"jurisprudence of color" can the reader
"defy the habit of neutral principles [used] to entrench existing power."
Under this approach, anecdotal information rises to the level of
Constitutional doctrine since
"stories are a means of obtaining the knowledge to create a just legal structure."
n136 Ad hominem analysis is not a logical fallacy because the
"identity of the person doing the analysis often seems to make the difference
... in responding [appropriately] to racist speech."
n137 The victim's story provides particular solutions to the problems of racist
"Law is essentially political" and the focus of outsider jurisprudence is appropriately on
n138 Thus, it is ironic that these advocates conclude that outsiders should place
their confidence in the use of
"formal legal rules" to achieve substantive justice.
n139 There is no explanation as to how or why these legal rules will be immunized
from their untrustworthy political nature.
In making the case for campus
speech codes, Matsuda and Lawrence describe a society dominated by racism and made up of
n140 Perception, they claim, is a function of group
[*730] membership; although people of
"non-color" witness and hear of racial incidents, their membership in the dominant group
prevents them from perceiving the
"true" nature of such situations.
n141 While non-target group members consider such events to be distasteful,
isolated incidents, minorities, by virtue of their membership in the victim
group, correctly view them as part of an escalating and dangerous whole.
n142 The fact that racial incidents go unreported by the mainstream press
n143 contributes to the perception by people who are not victims that such
incidents are random, isolated, and inconsequential.
n144 Denizens of
"victim communities," however, informed by virtue of membership, as well as a flourishing outsider
"link together several thousand real life stories into one tale of caution."
n145 Thus, minorities understandably advocate swift state action, while dominant
group members suggest that the
"private realm" is the appropriate means to deal with these
According to Matsuda and Lawrence, hate speech is merely one very powerful
implement of racism which permeates American society. Racist speech goes beyond
vile epithets targeted at particular individuals. It includes
"sanitized" racist comments, such as
"righteous indignation" against diversity and affirmative action, and any other form of overt or
covert behavior which creates an
"intimidating or hostile environment."
n147 From the victim's perspective, each of these types of comments does the same
harm and damage: reinforcing the ubiquitous, albeit erroneous, message of
inherent racial inferiority.
n148 Racist speech, which
[*731] causes discrete and serious harm to minorities, interferes with the learning
process. Not only does the visceral shock and the preemptive impact of hate
speech silence minorities, but the ubiquity and force of the message of
inferiority devalues their opinions.
n149 Moreover, the lack of individual targeting does not minimize the damage.
So powerful is hate speech and so strong is group identity, that all members
of the target group allegedly react in a similar fashion. Moreover, there is no
resisting the painful impact of hate speech.
n151 The physiological symptoms and emotional distress range from
"fear in the gut, rapid pulse rate and difficulty in breathing, nightmares,
post-traumatic stress disorder, hypertension, psychosis, and suicide."
n152 Any attempt to resist the alleged message of inferiority is futile.
n153 The message contributes to a feeling of isolation, which is reinforced by the
lack of government response.
n154 The dominant group member reaction? Somehow Matsuda's status as a victim does
not prevent her from generalizing the effect of racist speech on whites.
According to Matsuda, whites experience a sense of distant guilt, and relief
that they are not targeted.
n155 Ignoring the vast increase in the number of interracial marriages since 1970,
n156 Matsuda claims that this generalized reaction is
"one reason why social relations across racial lines are so rare in America."
1. Matsuda's Proposal: Sui Generis Category
Although Matsuda criticizes traditional constitutional doctrine for protecting
racist speech at the expense of minorities, she recognizes that
speech codes, which place the state in the position of censor, could chill valuable speech.
n158 She is uncomfortable in advocating regulation
"if others fall too easily into agreement."
n159 Therefore, to avoid weakening the First Amendment by attempting to fit the
square peg of racist speech into the round hole of traditional doctrine,
Matsuda advocates the creation of a narrowly defined, sui generis category.
n160 So untenable is the idea of inherent racial superiority and so great is the
harm caused by hate speech, that expression that promotes such dangerous and
universally condemned beliefs
n161 can be cast
"outside the realm of protected discourse."
"narrow definition of actionable racist speech" will not only prevent chilling valuable speech, but it will also
"set aside" the
"worst forms" of racist speech for special treatment.
n163 Three characteristics serve to identify actionable racist speech:
(1) The message is one of racial inferiority;
(2) The message is directed against a historically oppressed group;
(3) The message is persecutorial, hateful and degrading.
From doctrinal and policy perspectives, Matsuda's recommendation raises
several problems. Her assertion that racist ideas are universally condemned is
undermined by the occurrence of racist incidents in the United States and
abroad. Indeed, one commentator contends that Matsuda and others advocate hate
speech regulation precisely because of its prevalence.
n165 The fact that hate
[*733] speech is prohibited by UN conventions and outlawed in other countries does
not mean that such treatment is consistent with First Amendment doctrine or
American free speech values. The United States is unique in its defense of
dangerous speech, racist or otherwise.
n166 For example, while Germany forbids the display of the swastika, American
courts have consistently defended an individual's right to burn the flag or to
disseminate Nazi propaganda.
Treating hate speech as
"qualitatively different" would signify a diminution of the impartial commitment to free speech in the
n168 Once racist speech is banned based on the emotional injury suffered by those
targeted, other groups would argue that offensive speech targeted at them
should be placed in a sui generis category.
Speech code proponents would argue that the harm caused by hate speech is uniquely
n170 They could contend that such categorization would do minor, if any, damage to
First Amendment fabric. However, not only is the offensiveness of speech
irrelevant to Constitutional analysis,
n171 but the
[*734] Amendment was designed to avoid [totalitarian] ends by avoiding [such]
n172 In conducting the
"highly contextualized" analysis to determine whether speech is
"actionable," a court would have to rely on the
"victim's voice." Not only does such an approach seem unprincipled, but it does not lend itself
to an application that is predictable or consistent.
Given her assertion that any expression of inherent racial inferiority causes
equally severe harm to minorities, Matsuda's recommendation to define
actionable hate speech narrowly is ironic and not altogether convincing.
n173 Indeed, once she applies her definition of actionable hate speech to
"hard cases," it is clear that her goal is to render offensive ideas, as well as painful
epithets, illegitimate. Consider the following:
1. Expressions of hatred, revulsion, and anger towards dominant-group members
by subordinated group members are not actionable. Although Matsuda recognizes
that the harm and hurt is
"there," she contends that it is of a
n174 Not only will dominant group members have greater access to
"safe harbors," but since the attack is not linked to
"racist vertical relationships," it is less pernicious.
n175 Moreover, such utterances are merely part of the
"victim's struggle for self-identity."
2. The display of the swastika, klan robes, or the confederate flag convey the
message of racist persecution and should be banned.
3. Under certain circumstances, the ideas of the
"dead-wrong" social scientist would be denied a public forum. If the theory of inferiority
is not free of any message of hatred or persecution, then it should be outlawed
"Cold-blooded versions" of anti-Semitic literature, especially those propagating the
"Holocaust Myth," should be met not with more credible historical accounts, but with outright
n179 Displays of offensive collections, such as Nazi propaganda, should be subject
"state intervention" where the
[*735] displays cause
"gratuitous harm" to viewers.
n180 In order to distinguish historical displays from more dangerous collections,
one must rely on the
n181 Only by considering the
"victim-group members'" perspective can one determine whether there is
"real harmto real people."
5. While the rapid fire sequence of racial epithets in Spike Lee's film Do the
Right Thing offers an
"incisive anti-racist critique of racist speech," Mark Twain's The Adventures of Huckleberry Finn causes harm to minority
"further exposing" them to racist speech.
The preceding consideration of Matsuda's
"narrow" definition should give pause to anyone who has confidence that relying on the
voice of victims will create a more just legal order in which freedom of speech
and unfettered intellectual inquiry will flourish.
B. Lawrence: Equality
Lawrence also beseeches the reader to
"listen to the victims."
n184 He suggests that
"carefully drafted" regulations can be upheld
"without significant departures from existing First Amendment doctrine."
n185 Lawrence contends that racist speech denies minorities equal protection and
claims that Brown v. Board of Education
n186 supports the regulation of private racist speech.
n187 Lawrence argues that hate speech, which is similar to a physical blow, can be
treated as the
"functional equivalent" of fighting words. For several reasons, reliance on Lawrence's justifications
for restricting racist speech is not recommended. First, Lawrence misconstrues
both Brown and the fighting words doctrine. Second,
[*736] the non-intellectual nature of racial epithets does not justify its
prohibition. Third, Lawrence's rationales could be used to regulate protected
Lawrence argues that Brown v. Board of Education justifies the regulation of
private racist speech. The Brown Court held that segregated schools, which are
"inherently unequal," violate the equal protection clause of the Fourteenth Amendment.
n189 However, Lawrence contends that the Court held segregated schools
unconstitutional because of the message segregation conveys: racial inferiority
of black students.
n190 Lawrence's analysis conflates the important speech/conduct distinction and
ignores the state action requirement of the Fourteenth Amendment.
Separate educational facilities did not merely send a message of inferiority.
Rather, they treated blacks as inferior by separating them from whites. Brown
outlawed state-mandated discriminatory conduct, not speech. Any message was
incidental to the challenged conduct.
n191 To hold otherwise would conflate the distinction between speech and conduct.
n192 Moreover, even if Brown were construed to involve speech, it would apply only
to governments and not to private speech.
The Equal Protection Clause of the Fourteenth Amendment, by its very terms,
limits the power of state government.
n193 It would not apply to the activities or speech of a private individual, no
matter how offensive. However, Lawrence, who considers the state action
requirement to be a
"mystifying property of constitutional ideology,"
n194 contends that the ubiquitous nature of racism combined with the state's
refusal to punish private racist speech denies blacks equal protection.
n195 This characterization collapses the public/private distinction, a result which
some commentators contend
[*737] would have
Lawrence's argument that the First Amendment's rightto freedom of expression
should be balanced against the Fourteenth Amendment's right to equal protection
misconstrues the constitutional conflict and would justify sweeping
restrictions on offensive speech. The articulation by an individual of the
message of inherent racial inferiority does not involve a clash between two
constitutional rights. Rather, the conflict is between the speaker's
constitutional right to free expression and the ideal or norm of equality that
the speaker is challenging.
"If racist speech can be prohibited because it is contrary to the ideal of
equality, then surely Communist propaganda ... could be forbidden because it is
contrary to the ideal of democracy as embodied in our Constitution."
n198 Such a result would be inconsistent with the free speech principles embodied
in the First Amendment and would constitute a dangerous precedent.
1. Lawrence's Proposal: Fighting Words Equivalent
Lawrence contends that face-to-face racial epithets constitute the
"functional equivalent" of fighting words. According to this argument, racial epithets do not deserve
First Amendment protection for two reasons. First, they do not convey ideas,
but are similar to physical blows.
n199 Second, acting as a preemptive blow,
n200 racist speech silences minorities and causes an imperfection in the
marketplace of ideas. Lawrence's argument overlooks the Court's defense of
non-intellectual speech that appeals to the emotions. In Terminiello v.
n201 the Court noted that free speech may
"best serve its high purpose when it induces a condition of unrest ... or even
stirs people to anger."
n202 In Cohen v. California,
n203 the Court stated that the
"emotive function [of speech] may ... often be the more important element of the
overall message sought to be communicated."
n204 Indeed, Lawrence fails to note that even the most vituperative slur conveys a
message: that the addressee is inferior and unwanted.
The fact that racist speech causes an imperfection in the marketplace of ideas
by devaluing and silencing minority voices does
[*738] not justify its restriction. An imperfection in the marketplace of ideas does
not justify government intervention. Some speech may silence others. This
merely demonstrates the power of speech, which does not deprive others of the
important negative liberty to speak.
n205 Sacrificing freedom for one party
"is not an increase in what is being sacrificed, namely freedom, however great
the moral need or compensation for it."
n206 Society may choose to pursue other goals, such as equality. However, society
may not seek to attain these goals by suppressing speech. Rather, it must rely
on other methods, such as counter-expression or regulation of conduct.
Although Lawrence appears to advocate narrowly drafted regulations, it is
apparent that he intends to outlaw offensive ideas and opinions as well. Such a
result is necessary because the harm caused by hate speech consists of the
message of inferiority. Although he supports a fighting words model, Lawrence
contends that this doctrine should be expanded to include
"racist verbal assaults ... intentionally spoken in the presence of members of
the denigrated group."
n207 He endorses group defamation statutes
n208 and notes with approval Matsuda's proposal to create a sui generis category.
n209 Moreover, he advocates the application of a non-neutral captive audience
doctrine to the campus as a whole.
n210 The disharmony between the narrow regulations and the alleged harm of hate
speech inevitably encourages proponents of
speech codes, including Lawrence and Matsuda, to recommend broader, more restrictive laws.
Such a result undermines free speech and is inconsistent with the values
embodied in the First Amendment.
Speech Codes: The Threat to Liberal Education
[Academic freedom] is therefore a special concern of the First Amendment, which
does not tolerate laws that cast a pall of orthodoxy over the classroom.
-Keyishian v. Board of Regents
To impose any strait jacket upon the intellectual leaders in our colleges and
universities would imperil the future of our Nation.... Scholarship cannot
flourish in an atmosphere of suspicion and distrust.
-Sweezy v. New Hampshire
The previous sections of this paper strongly suggest that hate speech
regulations cannot be upheld under traditional First Amendment doctrine. This
section will argue that campus
speech codes will undermine the liberal educational system and erode a commitment to the
values animating the First Amendment.
In making their case for campus
speech codes, Matsuda and Lawrence misconceive the purpose of the university and offer a
demeaning portrayal of minority students. The purpose of the university is not
to protect a
"constituency with special vulnerabilities" from offensive ideas and beliefs.
n213 Nor does the university's mission entail the establishment of a community of
n214 Rather, the purpose of the university is to encourage debate, facilitate
unfettered intellectual inquiry, and force students as individuals to justify
their opinions with solid, thoughtful arguments.
speech codes, which classify students based on group membership, send the dangerous message
that censorship, not debate, is the best means of dealing with offensive ideas.
Moreover, the existence of
speech codes also suggests that certain groups are unable to verbally defend themselves in
the arena of debate.
n216 Actually, confronting demeaning ideas with counter speech would do more to
empower minorities than the existence of paternalistic regulations.
Freedom of expression facilitates the university's mission: to advance
knowledge and encourage a search for the truth.
n218 The search for the truth is a continuous process, based on the premise that
the most rational and soundest judgement is that achieved by considering
allsides of the debate. Thus, freedom of expression is essential. No argument
is immune to challenge. Suppression of expression impedes the deliberative
process and distorts the final judgement. The only justification for censorship
is that the censor is infallible in its judgment of the truth. Campus
speech codes, which outlaw the expression of offensive ideas, will not only impede
discussion and the search for the truth, but will also send the dangerous
message to young Americans that those in positions of authority can be trusted
to unilaterally determine what is true. The regulation of hate speech in the
academic setting may erode the commitment of a generation of Americans to a
liberal system of free expression. As the Supreme Court noted not long ago,
"the Nation's future depends upon leaders trained through wide exposure to that
robust exchange of ideas which discovers truth out of a multitude of tongues,
[rather] than through any kind of authoritative selection."
Speech code proponents claim that rules requiring
"civility and respect in academic discourse" are necessary to encourage the fullest exchange of debate.
n220 However, campus
speech codes could chill speech by inhibiting the discussion of controversial ideas and
n221 As noted above, in order to mitigate the harm of racist speech,
speech codes must prohibit the dissemination of the offensive idea of racial inferiority.
Students will be reluctant to question such policies as affirmative action and
ethnic theme houses.
"racist or hate speech" is a generic term that includes speech that demeans others on the basis of
gender, sexual orientation, physical ability and attractiveness, religion,
marital status, and even, in some cases, Vietnam-era veteran status. Students
could consider that such codes impose a new orthodoxy that discourages
questions challenging tenets of feminism, sources of homosexuality, and the
idea that there are biological differences among racial groups that contribute
to cognitive ability.
n223 Whether or not students' fears are valid, the important point is what they
Experience demonstrates that
speech codes have been used to punish unorthodox views. Under the University of Michigan
policy, a male student who remarked that
"women just are not as good in this field as men" created a hostile learning environment in violation of the
n225 A black graduate student seeking his degree in social work was brought before
the enforcement panel because he
""repeatedly said that homosexuality is an illness that needs to be cured,' and
that he had
"developed a model to change gay men and lesbians to a heterosexual orientation.'"
n226 Although a divided panel held that he did not violate the policy, they did
determine that his statements
"should be reviewed by the appropriate social work professionals in considering
[the student's] suitability
[*742] as a professional social worker."
n227 In an unrelated incident, a business student was required to write a letter of
apology in the school newspaper and attend a Gay Rap session after telling a
joke about homosexuals.
n228 A white student violated the policy when he remarked that he
"had heard that minorities have a difficult time in a [preclinical dentistry]
weed-out class and that [they] were not treated fairly." The student had learned of these rumors from his roommate, who was black.
n229 Finally, in striking down Michigan's policy, the District Court agreed that a
biopsychology student would have violated the code had he sought to discuss
controversial theories concerning the
"biological bases of individual differences in personality traits and mental
Enforcement of hate speech regulations often entails the use of various forms
"mind control." Students must write humiliating letters of apology, undergo
"sensitivity training," and enter into
"behavior contracts." For example, a student at the University of Wisconsin who called a woman a
"fucking bitch" was required to perform twenty hours of community service at a shelter for
n231 A student who called a black student a
"Shakazulu" during an argument was required to view a video on racism and write an essay
on the video describing how it
"sensitized [him] to the issues of diversity."
n232 While such policies may create a superficial conformity, it is doubtful that
they disabuse students of their offensive ideas. Legitimate questions, along
with discriminatory attitudes and ideas, are driven underground to fester. Such
a result seems antithetical to the notion of the university as a place to
"speak the unspeakable and think the unthinkable and challenge the
Contrary to the assertions of Lawrence and Matsuda, hate speech is not a white
monopoly. Black students have had complaints filed against them for anti-gay
and racist remarks.
n234 One black student was compelled to write a humiliating letter of apology after
referring to his white counterpart as
n235 As one commentator noted,
"it was everybody complaining about every
[*743] body else about everything."
n236 Rather than creating an atmosphere of civility, campus
speech codes facilitate acrimonious accusations and finger-pointing.
In making their case for campus
speech codes, Matsuda and Lawrence do not offer an explanation for the racial incidents at
American universities other than
"innate" white racism. However, many commentators who have studied the context and tone
of racial incidents on campus consider the cause of such problems lies, not in
"innate" racism of whites,
n238 but in the politics of difference that is vigorously practiced by American
n239 Under the guise of promoting
"diversity," university administrators have established ethnic theme houses, black student
unions, and African-American studies programs. Universities have even
endeavored to hire minority faculty, even though there were no openings.
n240 However, not only do some of these programs highlight
[*744] differences, but they appear to extend entitlements based solely on color.
n241 For example, although black students make up only six percent of the student
body at the University of Pennsylvania, the University funds a separate black
n242 Furthermore, most, if not all, universities and college programs have
"affirmative action" programs.
n243 Black and Hispanic students with B averages are honored at the University of
North Carolina at Chapel Hill at the university-sponsored annual
"3.0 Minority Recognition Ceremonies."
n244 Penn State pays black students for improving their grades. Improving from a C
to a C+ brings $ 550 and anything more brings $ 1,000.
n245 It would be difficult to argue that such paternalistic programs promote
self-confidence. As Steele notes,
"What better way to drive home the nail of inferiority?"
The politics of difference
n247 transforms race into the currency of power on campus. Students are encouraged
to view each other as mere representatives of diverse and competing groups.
Highlighting one's difference, especially one's racial difference, inspires
others to do the same.
n248 Elevating difference, however, under
[*745] mines any sense of community by making each group foreign and inaccessible to
n249 The politics of difference, promoted under the guise of
"diversity," sanctions power based on race, a heretofore illegitimate source of power.
n250 Thus, racial tensions are inevitable. As Steele notes,
"When I make my difference into power, other groups must seize upon their
difference to contain my power and maintain their position relative to me."
n251 If being black is a source of power, students may reasonably conclude that
being white is also sanctioned as a source of power.
Most, if not all, white students are taught that segregation is wrong and that
entitlements based on race are illegitimate.
n252 Thus, many view university policies based on skin color as inequitable.
n253 Moreover, there is evidence that a double standard is applied to racist
incidents on campus: While administrations react with vigor to the protests of
n254 attacks on white or Jewish students go unreported or result in minor
n255 Moreover, it is interesting to note that, as early as 1969, several civil
rights figures predicted that policies that promote difference based on race
and double standards would have a detrimental affect on campus race relations.
In the charged atmosphere of a campus,
speech codes, which treat the symptoms and not the causes of the racist disease, will
exacerbate racial tensions in several ways. First, hate speech regulations will
discourage debate on controversial topics, such as affirmative action. Some
speech codes as rendering certain ideas
"beyond the pale." Dissenting views will be forced underground, only to eventually explode in an
ugly or perhaps violent manner. Second, to the extent that
speech codes are enforced only against members of the dominant group,
speech codes will be viewed as biased and unfair entitlements based on race. Such
paternalistic regulations will not disabuse white students of any notions of
black racial inferiority. Third, even if
speech codes are uniformly administered, they will reinforce notions of difference and
contribute to an atmosphere characterized by mutual recrimi
[*746] nation. Thus, without investigating the causes of racial incidents on campus,
speech code enthusiasts, such as Matsuda and Lawrence, suggest an approach that will not
only fail to solve the problem, but will also undermine the American commitment
to freedom of speech.
In a more general sense, support for campus
speech codes can be viewed as a part of the current emphasis on ethnicity and group
identity. The contemporary cult of ethnicity that is so popular at American
universities embraces ethnicity as the defining experience for most Americans.
Ethnic enthusiasts claim that ethnic ties are permanent and that the
maintenance of group identity is more important than the development of
individual identity. Ethnic spokesmen argue that
"division into ethnic communities establishes the basic structure of American
society and the basic meaning of American history."
n257 These advocates argue that the university, through
"multicultural studies" and ethnic theme houses, is the place to reaffirm these group ties.
Speech code proponents agree that the United States is dominated by competing groups
n258 and that the purpose of the university is to promote group identity.
n259 Indeed, they contend that
speech codes will facilitate the maintenance of group ties.
n260 However, not only is this conception inconsistent with American tradition
n261 and antithetical to the nature and purpose of the university, but it may also
contribute to the loosening of the brittle bonds of national identity that hold
this country together.
Contrary to the assertions of the contemporary spokesmen of ethnicity and
group identity, the United States has since its inception been a multicultural
nation. The solution to the inherent fragility of a multiethnic society
n262 has been the creation of a new
[*747] national identity
n263 premised on a willingness to shed the foreign skin and embrace a new civic
n264 As such, America is a transformative nation. The holy trilogy of the American
ethic - study hard, work hard, get ahead - has been and remains an important
force for assimilation.
n265 Moreover, the American Creed envisages a nation of individuals pursuing
individual achievement, not a nation composed of separate ethnic communities.
n266 The Constitution enshrines individual, not group rights. Ethnic identity and
the ties to the
"old country" are to be promoted in the home, not the universities. The purpose of schools
and universities in the American system is not to maintain inviolable cultures,
but to instill a sense of common purpose in the students, while encouraging
individual self-realization and achievement. Indeed, one commentator notes that
"public schools have been the great instrument of assimilation and the great
means of forming an American identity."
n267 To enable universities to become balkanized into fractious groups could
undermine a commitment to the American experiment by deemphasizing the
individual and democratic values on which the Republic is based. Campus
speech codes exacerbate this problem by encouraging students to view each other, not as
individuals, but as mere representatives of monolithic, competing groups.
speech codes cannot be upheld under traditional Constitutional doctrine and are
inconsistent with First Amendment principles.
Speech codes will not end campus racism. Rather, they will only exacerbate tensions and
contribute to a polarization of the
[*748] campus. Contrary to the assertion of hate speech proponents,
speech codes will not enforce
"civility." Rather, they will discourage academic discourse on controversial topics and
inhibit intellectual inquiry. They will be interpreted as part of the pall of
orthodoxy that has settled over the American academy. Offensive ideas and
discriminatory beliefs will be forced underground, where they will fester and
eventually explode in an uglier and, perhaps violent, form.
Most important, hate speech regulation will not disabuse whites or blacks of
nagging doubts about racial inferiority. Indeed, viewed as paternalistic
ordinances, they may only reaffirm such dangerous and erroneous notions.
Minority students should not be forced to hide behind regulations. Rather, they
should be encouraged to meet derogatory expressions with forceful, thoughtful
arguments. Such action will do much to imbue them with a sense of empowerment.
As Dr. Martin Luther King said,
"The only way to beat the man ahead of you is to run faster."
n1. Although they cite no empirical studies, commentators consider the extent and
character of racial incidents to be of
"epidemic" proportions. See Mari J. Matsuda, Public Response to Racist Speech:
Considering the Victim's Story,
87 Mich L. Rev. 2320, 2332-33, nn. 38, 71 (1989) ("college campuses have seen an epidemic of racist incidents in the 1980s"); Charles R. Lawrence III, If He Hollers Let Him Go: Regulating Racist Speech
1990 Duke L.J. 431, 434 (American campuses have seen
"a resurgence of racial violence"); Robert A. Sedler, The Unconstitutionality of Campus Bans on
"Racist Speech:" The View From Without and Within,
53 U. Pitt. L. Rev. 631 (1992) ("a disturbing number of overtly racist incidents"). For a consideration of the empirical evidence on campus racial incidents,
see Dinesh D'Souza, Illiberal Education: The Politics of Race and Sex on Campus
124, 134 (1991).
n2. Sedler, supra note 1, at 631.
n3. See, e.g., Matsuda, supra note 1, at 2326-41 (telling the victim's story of
the effects of racist speech).
n4. This language is taken from the University of Wisconsin Administrative Code
UWS 17.06(2) (hereinafter
"UW Rule") and is similar to that found in regulations at other universities, such as
the University of Michigan. Both the Wisconsin and Michigan codes were recently
UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991);
Doe v. University of Mich., 721 F. Supp. 852 (E.D. Mich. 1989).
n5. Aware of the First Amendment's role in liberating the oppressed, Matsuda is
"uncomfortable in making [these] suggestions [to regulate speech] if others fall
too easily in agreement." Matsuda, supra note 1, at 2357. Noting that traditional First Amendment
doctrine reinforces society's commitment to tolerance, Lawrence cautions
"setting aside [such doctrine too] hastily." Lawrence, supra note 1, at 435-36.
"Racial inferiority is planted in our minds as an idea that may hold some truth." Matsuda, supra note 1, at 2339.
n7. Lawrence, supra note 1, at 438.
n8. See generally, Lawrence, supra note 1, at 438.
n9. Sedler, supra note 1, at 632 (claiming this view is
"a distinctly minority one").
n10. The most persuasive critic of
speech codes is Nadine Strossen, Regulating Racist Speech on Campus: A Modest Proposal,
1990 Duke L.J. 484 (arguing that freedom of speech is the most effective weapon against
discrimination). For the perspective of the litigating lawyer, see Sedler,
supra note 1, at 631.
n11. For example, a classroom discussion in which a white student, with the tacit
approval of the instructor, cited affirmative action programs as proof that
blacks are intellectually inferior could create more of a
"hostile learning environment" for minorities than an isolated vituperative exchange on campus.
n12. University of Michigan Policy on Discrimination and Discriminatory Harassment
of Students in the University Environment (hereinafter
"Policy"). Under the University of Connecticut's policy harassment includes
"misdirected laughter" and
"conspicuous exclusion from conversation." D'Souza, supra note 1, at 9.
n13. The author uses the term
"orthodoxy" interchangeably in this paper with the term
"political correctness." In the charged atmosphere of the American academy, the term
"politically correct" engenders either derisive laughter, angry retorts, or a vigorous nodding of
heads. The author merely requests that the reader remain open to the ideas
presented in this paper.
n14. These beliefs include the notion that homosexuality is just another lifestyle,
that the tenets of feminism are superior to the traditional view of women, that
heterosexuality tends to dominate and suppress women, and that Western culture
is characterized by oppression of non-whites and females. See generally,
D'Souza, supra note 1; Nat Hentoff, Free Speech for Me-But Not for Thee: How
The American Left and Right Relentlessly Censor Each Other (1992); Jonathan
Rauch, Kindly Inquisitors: The New Attacks on Free Thought 19, 143 (1993);
Sedler, supra note 1, at 638; Michiko Kakutani, The Word Police are Listening
"Incorrect' Language, N.Y. Times, Feb. 1, 1993, at B1; John Leo, Found on the
Shelves at Isms' R Us, Wash. Post, June 9, 1992 at F1.
n15. The enforcement record of several campus
speech codes suggests that these concerns are not unwarranted. See
Doe v. University of Mich., 721 F. Supp. 852, 859 (E.D. Mich. 1989) (stating that, based on the University's enforcement of its
"there existed a realistic and credible threat" that the expression of certain race-based biopsychological theories might
UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163, 1167-68 (E.D. Wis. 1991); Sedler, supra note 1, at 639 (arguing that the Michigan policy was
"administered to implement a new secular orthodoxy on the university campus"). For further discussion, see infra text accompanying notes 202-10.
n16. Several Supreme Court cases dealt with universities' attempts to establish
"conventions of decency" and to compel professors to sign loyalty oaths during the 1960s and 1970s.
Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) ("To impose any strait jacket upon the intellectual leaders in our colleges and
universities would imperil the future of our Nation");
Papish v. Board of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973) ("The mere dissemination of ideas - no matter how offensive to good taste - on a
state university campus may not be shut off in the name alone of
"conventions of decency.'
337 U.S. 1, 4 (1949).
n19. Such words are
"no essential part of any exposition of ideas, and are of slight social value as
a step to truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality." Id. at 572.
n20. The New Hampshire Supreme Court interpreted a state statute that made it
"address any offensive, derisive or annoying word to any other person [in
public] ... or call him by any offensive or derisive name." Id. at 569. To ban words that
"men of common intelligence would understand would be words likely to cause an
average addressee to fight." Id. at 573. The New Hampshire court noted that
"no words [are] forbidden except such as have a direct tendency to cause acts of
violence by the person to whom, individually, the remark is addressed." Id.
n21. Fighting words are
"face-to-face words plainly likely to cause a breach of the peace by the
addressee, words whose speaking constitute a breach of the peace by the speaker." Id.
n22. Lawrence, supra note 1, at 450-52 (describing Stanford University's
speech code as one which would, because of the
"fighting words" doctrine, permissibly prohibit certain instances of speech). The fighting
words doctrine is the principal model for the Stanford University code.
Gooding v. Wilson, 405 U.S. 518 (1972) (overturning Georgia court's decision for failing to limit interpretation of
state statute to second half of fighting words definition).
Id. at 524 (holding that the terms
"opprobrious" have greater reach than
Cohen v. California, 403 U.S. 15, 20 (1971) (quoting
Cantwell v. Connecticut, 310 U.S. 296, 309 (1940)).
UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163 (E.D. Wis. 1991) (striking down a University of Wisconsin hate speech regulation).
Gooding, 405 U.S. at 526-27. See
Texas v. Johnson, 491 U.S. 397 (1989) (discussing the
"fighting words" doctrine).
UWM Post, Inc., 774 F. Supp. at 1175.
n29. Gerald Gunther, Constitutional Law 1073 (12th ed. 1991). Moreover, the Court
has overturned an injunction based on the very word employed in
Chaplinsky. Cafeteria Employees Local 302 v. Angelos, 320 U.S. 293, 295 (1943) (stating that the use of the word
"part of the conventional give-and-take in our economic and political
n30. Stanford Univ. Campus Rep., May 3, 1989, at 18.
n31. Stephen W. Gard, Fighting Words as Free Speech,
58 Wash. U. L.Q. 531, 536 (1980); Note, First Amendment Limits on Tort Liability for Words Intended to Inflict
Severe Emotional Distress,
85 Colum. L. Rev. 1749, 1754 (1985) ("Chaplinsky may well reflect concerns peculiar to the decade when it was
decided, rather than enduring first amendment principles.").
"If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society
finds it offensive or disagreeable."
Texas v. Johnson, 491 U.S. 397, 414 (1989).
n33. In striking down the University of Wisconsin's narrowly drafted
speech code, the District Court noted that
"racist speech" was intended to inform the listeners of the speaker's
"racist or discriminatory views."
UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163, 1175 (E.D. Wis. 1991).
n34. Lawrence, supra note 1, at 457-64 ("Minorities remain silent and submissive"). H. Kalven, The Negro And The First Amendment 14-15 (1965) ("Outbursts of violence are not the necessary consequence of such speech ... and
not the serious evil of such speech.").
Gooding v. Wilson, 405 U.S. 518, 523-24 (1972) (emphasis added).
n36. Matsuda, supra note 1, at 2372.
n37. Matsuda, supra note 1, at 2361.
n38. Although the decision was unanimous, there were several concurring opinions.
R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2560-61 (1992). The concurring opinion of Justice White, joined by Justices Blackmun, O'Connor
and Stevens, disagreed with the majority's reasoning, but they did reaffirm the
very limited nature of the fighting words doctrine. Because the Minnesota
Supreme Court's narrowing construction of St. Paul's ordinance defined fighting
words to encompass speech that causes anger, alarm, or resentment in others on
the basis of race, color, creed, religion, or gender, Justice White found it
insufficient to avoid unconstitutional overbreadth. As Justice White noted,
"the mere fact that expressive activity causes hurt feelings, offense, or
resentment does not render the expression unprotected."
Id. at 2559. However, in accepting the Minnesota Supreme Court's construction, Justice
Scalia seems to suggest, contrary to precedent, that the fighting words
doctrine includes both parts of the definition: words that either inflict
injury or tend to incite violence.
Id. at 2549.
n39. The defendants were convicted under the ordinance after burning a cross inside
the fenced yard of a black family.
Id. at 2541.
Id. at 2547.
Id. at 2549.
n43. Sedler, supra note 1, at 681.
n44. Gard, supra note 31, at 566.
n45. Strossen, supra note 10, at n.139 (describing examples of such prosecution).
n46. In the lower courts, the doctrine of fighting words
"is almost uniformly invoked in a selective and discriminatory manner by law
enforcement officials to punish trivial violations of a constitutionally
impermissible interest in preventing criticism of official conduct." Gard, supra note 31, at 564.
"We must realize that judges, being human, will not only make mistakes but will
sometimes succumb to the pressures exerted by the government to allow
restraints [on speech] that ought not to be allowed." L. Bollinger, The Tolerant Society 78 (1986).
n49. This article will not address the issues relating to
speech codes at private universities and colleges.
Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984).
n51. Lawrence, supra note 1, at 437. However, other commentators contend that the
captive audience concept is
"an elusive and challenging one to apply." Strossen, supra note 10, at 501. Lawrence Tribe notes that this concept is
"dangerously encompassing, and that the Court has been reluctant to accept its
implications whenever a regulation is not content-neutral." Lawrence Tribe, American Constitutional Law 12-19, at 949-50 (2d ed. 1988).
FCC v. Pacifica Foundation, 438 U.S. 726 (1978) (holding that the FCC can restrict the broadcasting of
"offensive language" over the radio in the middle of the day).
Frisby v. Schultz, 487 U.S. 474, 484 (1988).
n54. Sedler, supra note 1, at 667.
"Minority students should not have to remain in their rooms to avoid racial
assault." Lawrence, supra note 1, at 456-57.
"In many locations, we expect individuals simply to avoid speech they do not
want to hear ...."
Frisby, 487 U.S. at 484 (citing
Erznoznik v. Jacksonville, 422 U.S. 205 (1975) and
Cohen v. California, 403 U.S. 15 (1971)).
"The ability of government ... to shut off discourse solely to protect others
from hearing it is ... dependent upon a showing that substantial privacy
interests are being invaded in an essentially intolerable manner. Any broader
view of this authority would effectively empower a majority to silence
dissidents simply as a matter of personal predilections."
Cohen, 402 U.S. at 21 (emphasis added).
n58. Lawrence, supra note 1, at 456. See
Frisby, 487 U.S. at 474 (upholding prohibition of
"focused picketing" directed against a person in front of the person's home);
Kovacs v. Cooper 336 U.S. 77, 86 (1949) (finding that a city ordinance outlawing use of soundtrucks on city streets
did not abridge the right to free speech);
Rowan v. United States Post Office Dep't, 397 U.S. 728, 736 (1970) (upholding federal law that enabled unwilling recipient of sexually explicit
material to prevent material from coming into the home).
274 U.S. 357, 375 (1927) (Brandeis, J., concurring).
Dennis v. United States, 341 U.S. 494 (1951) (upholding conviction of violation of Smith Act);
Frohwerk v. United States, 249 U.S. 204 (1919) (applying the clear and present danger test in a modified manner);
Abrams v. United States, 250 U.S. 616 (1919) (upholding conviction under Espionage Act);
Debs v. United States, 249 U.S. 211 (1919) (upholding conviction under Espionage Act);
Schenck v. United States, 249 U.S. 47 (1919).
Brandenburg, 395 U.S. at 446.
Bond v. Floyd, 385 U.S. 116, 132 (1966) (finding anti-war and anti-draft statements of Georgia state representative
did not constitute advocacy of unlawful draft resistance, but merely a general,
abstract declaration of opposition to the Vietnam War).
Hess v. Indiana, 414 U.S. 105, 109 (1973) (holding that student anti-war protester's statement that they would
"take the fucking street later" was not incitement).
Watts v. United States, 394 U.S. 705, 708 (1969) (holding that black man's claim that
"if they ever make me carry a rifle, the first man I want to get in my sights is
L.B.J." is hyperbolic political speech, not a true threat).
n65. Matsuda, supra note 1, at 2335-41.
Brandenburg, 395 U.S. 444 (1969).
n67. Matsuda, supra note 1, at 2332-33.
Beauharnais, 343 U.S. at 258. See Lawrence, supra note 1, at 464 (noting group defamation concept).
Beauharnais, 343 U.S. at 251.
Id. at 252. The defendant distributed leaflets demanding that Chicago officials stop the
encroachment of the Negro. Id. The leaflet stated that the white people would
be corrupted by the raping and drug use of the Negro.
Id. at 258.
Id. at 258-59.
Id. at 259.
"Illinois has been the scene of exacerbated tension between races, often flaring
into violence and destruction." Id.
"Wilful purveyors of falsehood concerning racial ... groups promote strife ...." Id.
Beauharnais, 343 U.S. at 261.
n76. Matsuda, supra note 1, at 2333 n.71.
Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir.), cert. denied,
439 U.S. 916 (1978). Skokie modeled its ordinance on the Beauharnais group libel statute.
Id. at 1204.
Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) ("There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem. These include ... the libelous.").
Beauharnais, 343 U.S. at 259.
"Illinois [could conclude, from the State's own experience,] that wilful
purveyors of falsehood concerning racial and religious groups promote strife." Id.
"We would deny experience to say that the Illinois legislature was without
reason in seeking ways to curb false or malicious defamation of racial ...
Id. at 261.
Id. at 258.
"[If] an utterance directed at an individual may be the object of criminal
sanctions, we cannot deny to a State power to punish the same utterance
directed at a defined group ...." Id.
376 U.S. 254 (1964).
Id. at 279-80 ("prohibiting a public official from recovering damages for a defamatory
falsehood relating to his official conduct unless he proves that the statement
was made with
"actual malice" - that is, with knowledge that it was false or with reckless disregard of
whether it was false or not").
Id. at 279.
Tollett v. United States, 485 F.2d 1087, 1094 n.14 (8th Cir. 1973).
Collin v. Smith, 578 F.2d 1197, 1205 (7th Cir. 1978). See Tribe, supra note 51, at 926-27 (questioning the validity of Beauharnais
after the defamation case).
New York Times, 376 U.S. at 270 (finding that
"debate on public issues should be uninhibited, robust, and wide-open, and ...
it may well include vehement, caustic, and sometimes unpleasantly sharp attacks
on government and public officials").
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974).
n88. Lawrence, supra note 1, at 463 n.119. Lawrence recognizes that
"the racial epithet is the expression of a widely held belief. It is invoked as
a statement of political belief." Id.
Texas v. Johnson, 491 U.S. 397, 414 (1989).
Collin v. Smith, 578 F.2d 1197, 1204 (7th Cir. 1978). In order to receive a permit, any proposed assembly in Skokie could not
"portray criminality, depravity or lack of virtue in, or incite violence,
hatred, abuse or hostility toward a ... group of persons by reason of reference
to religious, racial, ethnic, national or regional affiliation."
Id. at 1199.
Id. at 1207. See Donald A. Downs, Skokie Revisited: Hate Group Speech and the First
60 Notre Dame L. Rev. 629, 662 (1985) (noting that
"the statute would provide grounds for punishing such works as Huckleberry Finn
and Merchant of Venice . .. Mein Kampf could also be affected by the law [of
Collin], even if published or used to teach the evil of Nazism.").
n92. Matsuda, supra note 1, at 2321.
n93. Shelby Steele, The Content of Our Character: A New Vision of Race in America
n94. Joseph Tanenhaus, Group Libel,
35 Cornell L.Q. 261, 299 (1950).
n95. Lawrence, supra note 1, at 463 n.119.
n96. See Comment, Race Defamation and the First Amendment,
34 Fordham L. Rev. 653, 675 (1966) (suggesting that minority groups will not be protected because a trial would
aid hate groups in disseminating their propaganda).
Id. at 662.
n98. See Peter Linzer, White Liberal Looks at Racist Speech,
65 St. John's L. Rev. 187, 226 (1991) (arguing that group libel may be used against some groups intended to be
"[A] resurrection of Beauharnais will give prosecutors a weapon against those
who speak intemperately about religions, or against any group that offends
people [and] these prosecutors may favor some groups that most writers do not
intend to protect.").
n99. Tanenhaus, supra note 94, at 279-80.
Beauharnais, 343 U.S. at 274.
n101. Id. at 250.
n102. Mental and Emotional Disturbance in the Law of Torts,
49 Harv. L. Rev. 1033, 1035 (1936).
n103. See Lawrence, supra note 1, at 458-66 ("Face to face racial insults ... are like receiving a slap in the face"); Matsuda, supra note 1, at 2326-31 (discussing the harm resulting from
racism); Richard Delgado, Words That Wound: A Tort Action for Racial Insults,
Epithets, and Name Calling,
17 Harv. C.R.-C.L. L. Rev. 133, 135-49 (1982) (same).
n104. The University of Texas'
speech code is based on this doctrine. See Report of President's Ad Hoc Committee on
Racial Harassment, University of Texas at Austin 17 (Nov. 27, 1989) (defining
"racial harassment" as
"extreme or outrageous acts or communications that are intended to harass,
intimidate, or humiliate a student on account of race, color, or national
origin and that reasonably cause them to suffer severe emotional distress." The rule applies
"only where the distress inflicted is so severe that no reasonable person could
be expected to endure it."). See also Delgado, supra note 103, at 151-57 (discussing the application of
intentional infliction of emotional distress with regard to hate speech).
485 U.S. 46, 57 (1988). The parody, featured in Hustler Magazine, was of a Campari Liqueur ad entitled
"Jerry Falwell Talks About His First Time."
Id. at 48. The parody suggested that Jerry Falwell's first sexual encounter was with his
mother in an outhouse. The ad contained a disclaimer in small print,
"Ad parody-not to be taken seriously." Id.
"Public figures and public officials ... [must show] that the publication
contains a false statement of fact which was made with
"actual malice,' i.e., with knowledge that the statement was false or with
reckless disregard as to whether or not it was true."
Id. at 48.
Id. at 57 (stating that
"The sort of robust political debate encouraged by the First Amendment is bound
to produce speech critical of public officials or public figures .... Such
criticism [will at times be]
"vehement, caustic, and sometimes unpleasantly sharp ...."
Id. at 51.
Id. at 53.
Id. at 56.
"Such a standard is necessary to give adequate
"breathing space' to the freedoms protected by the First Amendment."
Id. at 56.
485 U.S. at 53.
"Generally speaking the law does not regard the intent to inflict emotional
distress as one which should receive much solicitude ...." Id.
Id. at 55. Acknowledging the subjective nature of the
"outrageous" standard, the Court stated that
"outrageous in the area of political and social discourse has an inherent
subjectiveness about it which would allow a jury to impose liability on the
basis of the jurors' tastes or views, or perhaps on the basis of their dislike
of a particular expression." Id.
"outrageousness' standard thus runs afoul of our longstanding refusal to allow
damages to be awarded because speech in question may have an adverse emotional
impact on the audience."
Id. at 55.
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (emphasis added) (quoting
Falwell, 485 U.S. at 50).
n114. Gard, supra note 31, at 578. As Haiman points out in Franklin S. Haiman,
Speech And The Law In A Free Society 152-53 (1981), the
"outrageousness" standard invites great subjectivity.
"There is a particular danger that this speech restrictive doctrine will also be
enforced to the detriment of the very minority groups whom it is designed to
protect." Strossen, supra note 10, at 515.
"Most members of the group had difficulty with the subjectivity involved in
making judgments on the basis of the emotional pain suffered by the targets of
[hate speech].... The prevailing view seemed to be that emotional pain, by
itself, cannot be measured with the precision and objectivity required of any
rule restricting speech." Stanford University, Fundamental Standard Interpretation: Free Expression and
Discriminatory Harassment (June 1990).
n116. Strossen, supra note 10, at 516.
n117. See Strossen, supra note 10, at 516 (discussing the definition of
"racial harassment under the ordinance). Limiting the regulation based on race,
color, or national origin might not be upheld under
R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2550 (1992) (majority holding that ordinance that banned the display of a symbol which one
knows or has reason to know arouses anger, alarm, or resentment in others on
the basis of race, color, creed, religion, or gender violates the principle of
n118. See Linzer, supra note 98, at 233 (discussing the requirements of the Texas
n119. The application of Section 46 is not limited to harassment based on race,
ethnicity, or religion. Rather, anyone who has sustained severe emotional
distress under the proscribed circumstances may file a complaint based on the
principle enunciated in Section 46.
Restatement (Second) of Torts 46 (1965). In order to prevent the courts from
"running wild on this thing," the drafters noted that
"extreme and outrageous conduct" should be narrowly construed.
"[It] does not extend to mere insults, indignities, threats, annoyances, petty
oppression .... There is no occasion for the law to intervene in every case
where someone's feelings are hurt. There must still be freedom to express an
Restatement (Second) of Torts 46 cmt. d (1965).
Wiggs v. Courshon, 355 F. Supp. 206, 208 (S.D. Fla. 1973) (ruling against white waitress who informed black customer in presence of
customer's five year old daughter that,
"you can't talk to me like that, you black-son-of-a-bitch. I will kill you." The waitress yelled repeatedly that
"they are nothing but a bunch of niggers."). Id.
Bailey v. Binyon, 583 F. Supp. 923 (W.D. Ill. 1984) (upholding a judgment against an employer who repeatedly called a black
"nigger," and told him he
"was not a human being, [but] a nigger.").
n123. Jean C. Love, Discriminatory Speech and the Tort of Intentional Infliction of
47 Wash. & Lee L. Rev. 123, 127 (1990).
Id. at 151-52.
n125. One commentator contends that if a
"strong" person is the victim of discriminatory speech, that person may well find it
difficult to prove the fact of emotional distress.
Id. at 158. Compare
Gray v. Serruto Builders, Inc. 110 N.J. Super. 297 (1970) (court dismissed action in which black minister denied housing that was
subsequently offered to white couple. The court considered the plaintiff to be
"man not likely to be bowled over by a single set-back") with
Alcorn v. Anbro Eng'g, Inc., 468 P.2d 216 (Cal. 1970) (upholding judgment in favor of black truck driver repeatedly called
"nigger" by his boss and threatened with dismissal. The employee became
"sick and ill for several weeks thereafter, was unable to work, and sustained
shock, nausea and insomnia.").
n126. The Model Act recognizes a tort action whenever a person
"intentionally engages in a ... pattern of communication evincing a continuity
of purpose ... that is addressed to an individual, that is specifically
intended to ... harass or intimidate the individual (on the basis of) race,
sex, ethnic origin, or religion, and that directly causes serious emotional
distress." Model Communicative Torts Act 6-103 (1989).
n128. Lawrence, supra note 1, at 438; Matsuda, supra note 1, at 2357.
n129. Matsuda, supra note 1, at 2357.
n130. This section deals primarily, but not exclusively, with the assertions of
Matsuda. For organizational and stylistic purposes, this section incorporates
those aspects of Lawrence's argument that are similar to Matsuda's. For a
consideration of Lawrence's proposal to deal with hate speech, see infra notes
184-208 and accompanying text.
n131. Matsuda prefers
"minority," since the latter term
"belies the numerical significance of the constituencies typically excluded from
jurisprudential discourse." She claims that the outsider's jurisprudence is
"growing and thriving" alongside mainstream jurisprudence. Matsuda, supra note 1, at 2323.
n132. Matsuda, supra note 1, at 2322. Lawrence, supra note 1, at 436 ("We have not listened to the real victims").
"I write this Article from within the cauldron of this controversy." Lawrence, supra note 1, at 434. See Matsuda, supra note 1, at 2320.
n134. Matsuda, supra note 1, at 2322.
n135. Lawrence claims that
"to engage in a debate about the first amendment and racist speech without a
full understanding of the nature and extent of the harm of racist speech risks
making the first amendment an instrument of domination rather than a vehicle of
liberation." Lawrence, supra note 1, at 459.
n136. Matsuda, supra note 1, at 2325 n.32.
n137. Masuda, supra note 1, at 2326.
n138. Matsuda, supra note 1, at 2324-25.
n139. Matsuda, supra note 1, at 2325. This suggestion is ironic since the legal
system is dominated by white males. Moreover, given the fact that the legal
system has been used to suppress blacks, it is ironic that these commentators
advocate more government power over speech. Consider the perspective of another
victim group member reflecting upon the Nazi march in Skokie, Illinois:
Because we Jews are uniquely vulnerable, I believe we can win only brief
respite from persecution in a society in which encounters are settled by power.
As a Jew, therefore ... I want restraints placed on power ... I want restraints
which prohibit those in power from interfering with my right to speak ....
Aryeh Neier, Defending My Enemy: American Nazis, The Skokie Case, And The Risks
Of Freedom 5 (1979).
n140. Lawrence, supra note 1, at 435. While Matsuda and Lawrence both recite several
well-known examples of campus racial incidents, they fail to delve into the
context or tone of such events. They do not explain the cause of these
problems; rather, they imply that it is innate white racism. For a detailed
discussion of campus racial incidents, see generally John H. Bunzel, Race
Relations on Campus: Stanford Students Speak 25-35 (1992); D'Souza, supra note
1 (providing a detailed discussion and explanation of many racial incidents
that have occurred since 1980); Thomas Sowell, Inside American Education: The
Decline, The Deception, The Dogmas 155-73 (analyzing the reporting of racist
incidents and consideration of causes of racial tensions on campus).
n141. See Lawrence supra note 1, at 483 n.140 (discussing Lawrence's contention that
whites' and non-whites' different perceptions of racism are due to their
respective races and cultures). Matsuda employs the following terms
"people of non-color,"
"whites." As noted above, although she uses the term
"minority," Matsuda prefers the word
"outsider." She also refers to
"historically underrepresented groups,"
"victim communities." Matsuda, supra note 1, at 2321, 2323, 2325, 2339.
n142. See Matsuda, supra note 1, at 2327 n.37 (claiming that hate messages are
rarely isolated especially on university campuses). As Lawrence notes
"black folks know that no racial incident is isolated in America." Lawrence, supra note 1, at 461. Neither Lawrence nor Matsuda cite empirical
evidence or studies to support these assertions. In fact, the incidents they
report as justifying hate speech regulations appear to be isolated.
n143. See Matsuda, supra note 1, at 2331.
n144. Matsuda, supra note 1, at 2331.
n145. Matsuda, supra note 1, at 2331.
n146. Matsuda, supra note 1, at 2327.
n147. For a discussion of forms of racism among the elite of society, people who are
less likely to resort to physical or otherwise obvious racist acts, see
Matsuda, supra note 1, at 2334.
n148. Citing no empirical evidence, Matsuda claims that
"the spoken message of hatred and inferiority is conveyed on the street, in
schoolyards, in popular culture and in the propaganda of hate widely
distributed in this country." Matsuda, supra note 1, at 2332. Moreover, Matsuda asserts that racist hate
messages are rapidly increasing and are widely distributed in this country
using a variety of law and high technologies." Matsuda, supra note 1, at 2336.
n149. Racist speech thus
n150. As Matsuda notes,
"[a minority] student cannot overhear a racial slur on the way to a lecture, and
then concentrate on the lecture as though nothing has happened." Matsuda, supra note 1, at 2372 n.256.
n151. For a discussion of the far-reaching impact of hate messages and other forms
of racism, see Matsuda, supra note 1, at 2337.
n152. Matsuda, supra note 1, at 2336. Matsuda cites studies to show the painful
effects of hate speech on individual victims. Racist speech does hurt. However,
as was demonstrated above, the offensiveness of speech does not warrant its
suppression under First Amendment doctrine. Moreover, as will be demonstrated
below, there are more effective means of dealing with hate speech.
n153. See Matsuda, supra note 1, at 2337-38 (discussing the devastating impact of
being the victim of racism, and carrying the feeling of being hated by society).
n154. For a discussion which considers the government's role in racism in society,
see Matsuda, supra note 1, at 2338. Matsuda claims that the government often
tolerates hate messages in various forms.
n155. Matsuda, supra note 1, at 2338-39.
n156. The number of interracial marriages in the past twenty years has increased
four-fold. Lynell George, Cross Colors: Interracial Dating is Not New, But How
Couples Get Together Has Changed, L.A. Times, Dec. 9, 1990, at 14.
n157. Matsuda, supra note 1, at 2339.
n158. See Matsuda, supra note 1, at 2357 (stating that
"the image of book burning should unnerve us and remind us to argue long and
hard before selecting a class of speech to exclude from the public domain.").
n159. Matsuda, supra note 1, at 2357. Actually, Matsuda notes the great benefit
derived from freedom of speech and the values that the First Amendment
promotes. Matsuda, supra note 1, at 2353.
n160. Matsuda, supra note 1, at 2357.
n161. Matsuda claims the universal condemnation of racism justifies treating racist
speech as categorically different. She cites the International Convention on
the Elimination of All Forms of Racial Discrimination, which requires ratifying
"criminalize racial hate messages." The United States has signed, but not ratified this convention. Matsuda also
notes with approval that the United Kingdom, Canada, New Zealand, and Australia
outlaw hate speech. Matsuda, supra note 1, at 2341-48. Other commentators
reveal that both the Canadian and the United Kingdom laws have been used to
suppress speech by the very minorities these laws were intended to protect. For
a discussion of situations where national regulations have worked contrary to
minority interest, see Strossen, supra note 10, at 556; Neier, supra note 139,
n162. Matsuda, supra note 1, at 2357.
n163. Matsuda, supra note 1, at 2357.
n164. Matsuda, supra note 1, at 2357.
n165. Robert C. Post, Racist Speech, Democracy, And The First Amendment,
32 Wm. & Mary L. Rev. 267, 301-02 (1991).
"The United States is apparently alone in the world community in sheltering
racist speech... but ... history demonstrates that if freedom of speech is
weakened for one person, group, or message, then it is no longer there for
others." Strossen, supra note 10, at 536.
Texas v. Johnson, 491 U.S. 397 (1989);
Collin v. Smith, 578 F.2d 1197 (7th Cir. 1978).
"He that would make his own liberty secure, must guard even his enemy from
oppression, for if he violates this duty, he establishes a precedent that will
reach himself." Thomas Paine, quoted in American Civil Liberties Union, Why the ACLU Defends
Free Speech for Racists and Totalitarians 2 (1990).
n169. See Strossen, supra note 10, at 522-23 n.190.
"What would this proposed act of constitutional revision do to the moral
legitimacy of the stance our Constitution has taken ... in defense of
expression that offends many Americans as deeply as flag burning offends the
great majority of us? ... What enduring Constitutional principle will remain
unimpaired that will legitimately surmount these claims?"
Id. (statement by Professor Walter Dellinger concerning the proposed amendment
to the Constitution that would prohibit flag burning).
n170. Two Supreme Court Justices appear to accept the notion that hate speech causes
unique harm. In a concurring opinion in R.A.V. v. City of St. Paul, Justice
Stevens noted that:
"threatening someone because of her race ... may cause particularly severe
trauma.... Such threats may be punished more severely than threats against
someone based on, say, his support of a particular athletic team."
R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2561 (1992). Justice Blackmun chastised the majority for failing to realize that
"racial threats and verbal assaults are of greater harm than other fighting
"If there is a bedrock principle underlying the First Amendment, it is that the
government may not prohibit the expression of an idea simply because society
finds the idea itself offensive or disagreeable."
Johnson, 491 U.S. at 414. See Sedler, supra note 1, at 664 ("It is also completely irrelevant, from a constitutional standpoint, that the
expression of racist ideas may cause serious and discrete harm to victim
groups.... The fact that expression causes phycsic or emotional harm to persons
cannot be an independent justification for restricting it"). Justice White recently noted that
"the mere fact that expressive activity causes hurt feelings, offense, or
resentment does not render the expression unprotected."
R.A.V., 112 S. Ct. at 2559 (concurring opinion).
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943).
n173. Matsuda, supra note 1, at 2357.
n174. Matsuda, supra note 1, at 2361.
n175. Matsuda, supra note 1, at 2361.
n176. Matsuda, supra note 1, at 2362.
n177. Matsuda, supra note 1, at 2365.
n178. Matsuda, supra note 1, at 2464-65. Apparently, the only dangerous
"dead-wrong" social scientists are those offering
"pseudo-scientific, Eurocentric" theories. Matsuda does not address the case of Leonard Jeffries, chairman of
Afro-American studies at New York University. Jeffries contends that whites are
inherently inferior to blacks since they lack melanin in their skin. Jeffries
refers to whites as
n179. Matsuda, supra note 1, at 2366-67.
n180. Citing no empirical studies other than a Time-Life advertisement for books on
the Third Reich, Matsuda claims that there is a
"growing passion for collecting racist memorabilia." Matsuda, supra note 1, at 2368.
n181. Matsuda, supra note 1, at 2368.
n182. Matsuda, supra note 1, at 2368.
n183. Matsuda, supra note 1, at 2369. In Mark Twain's account of the journey of Jim,
an escaped slave, and Huck Finn, a white boy, down the Mississippi River in the
late 19th century the word
"nigger" is repeated over 160 times. The story is generally considered to be a damning
critique of slavery and racism in America. Indeed, the only honorable character
is Jim, the slave. While the book was originally banned as offensive to whites,
many school systems have now removed the book from the curriculum and library
shelves for fear of offending black students. For a more detailed, and at times
amusing, account of the movement to ban The Adventures of Huckleberry Finn, see
Hentoff, supra note 14 at 18-41.
n184. Lawrence, supra note 1, at 459. Lawrence, who is black, provides some examples
of racist speech. Lawrence, supra note 1, at 460 (white high school students
painted vicious racial epithets on large soccer kickboard easily visible from
black family's home). However, his doctrinal approach would not support the
regulation of the very incidents that he describes.
n185. Lawrence, supra note 1, at 438.
347 U.S. 483 (1954).
n187. Lawrence, supra note 1, at 438.
n188. One commentator notes that
"Lawrence apparently acknowledges that ... his theories could warrant the
prohibition of all private racist speech. Any specific seemingly modest
proposal to regulate speech may in fact represent the proverbial
"thin edge of the wedge' for initiating broader regulations." Strossen, supra note 10, at 492.
n189. The Fourteenth Amendment provides that
"[No] State [shall] deny to any person within its jurisdiction the equal
protection of the laws." U.S. Const. amend. XIV (emphasis added).
n190. Lawrence, supra note 1, at 439-40.
n191. Lawrence contends that
"segregation's primary goal is to convey the message of white supremacy." Lawrence, supra note 1, at 441.
n192. Strossen, supra note 10, 542.
n193. The equality guarantee implicit in the due process clause of the Fifth
Amendment binds only the federal government. U.S. Const. amend. V.
n194. Lawrence, supra note 1, at 444.
n195. Lawrence , supra note 1, at 442. Matsuda also argues that the government's
failure to punish private racist speech can be viewed as state action since it
sends the message that the state supports such speech. Matsuda, supra note 1,
n196. James Weinstein, A Constitutional Roadmap to the Regulation of Campus Hate
38 Wayne L. Rev. 163, 168 n.19 (1991).
Id. at 167.
Id. at 169.
"The experience of being called a
"nigger" ... is like receiving a slap in the face." Lawrence, supra note 1, at 452.
n200. Lawrence, supra note 1, at 453.
Terminiello v. Chicago, 337 U.S. 1 (1949).
Id. at 4.
Cohen v. California, 403 U.S. 15 (1971).
Id. at 26.
n205. The First Amendment establishes the negative liberty of freedom of speech. It
places restrictions on the power of government to regulation speech. Ronald
Dworkin, Liberty and Pornography, N. Y. Review of Books, Aug. 15, 1991, at 12.
Id. at 15.
"To deny free speech in order to engineer social change in the name of
accomplishing a greater good for one sector of our society erodes the freedoms
of all and, as such, threatens tyranny and injustice for those subjected to the
rule of such laws."
American Booksellers Ass'n, Inc. v. Hudnut, 598 F. Supp. 1316, 1337 (S.D. Ind. 1984).
n207. Lawrence, supra note 1, at 451 n.85.
n208. Lawrence, supra note 1, at 464.
n209. Lawrence, supra note 1, at 481 n.169.
n210. See supra notes 54-57 and accompanying text.
n213. Matsuda, supra note 1, at 2370.
"[Minority] students are dependent on the university for community ... and for
self-definition." Matsuda, supra note 1, at 2370-71.
n215. Benno Schmidt, President of Yale, claims that
"[a] university is a place where people have to have the right to speak the
unspeakable and think the unthinkable and challenge the unchallengeable." Hentoff, supra note 14, at 152. Universities are [not] finishing schools:
their mission ... is not to convert errant minds or to teach good manners.
Their mission is to advance knowledge by teaching and practicing public
criticism." Rauch, supra note 14, at 132.
n216. Not all minority students feel the need for the false protection of
speech codes. During a debate on hate speech at Harvard Law School, one black student stated
that he was confident of his ability to respond to racist comments. To suggest
that black students had to be
"protected" was, in his opinion,
"insulting" to black people. Hentoff, supra note 14, at 160.
n217. Consider the incident that occurred at Arizona State. While walking in the
hallway of their dormitory, four black women encountered a poster on the door
of one of the residents. The poster depicted blacks in a negative fashion.
Rather than hiding behind Arizona State's
speech code, these women confronted the resident and demanded that he justify his views. He
could not. Instead, he offered an apology and removed the poster. The women
organized a dorm meeting to discuss the matter. Although all of those present
agreed that the poster was offensive, they also realized that students are
permitted to express their views, no matter how offensive, on their doors. The
next evening the residents of the dorm met to watch a film about Thurgood
Marshall and Brown v. Board of Education. The women also organized a
university-wide meeting at which race relations were discussed. Not only was
this an empowering experience, but the women felt others were encouraged to
"recognize that each of them is unique rather than a collection of stereotypical
physical and emotional characteristics." Id. at 93-95.
n218. According to Benno Schmidt,
"the university has a fundamental mission which is to search for the truth." Hentoff, supra note 14, at 152.
Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (quoting
United States v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943)).
n220. Lawrence, supra note 1, at 438.
n221. Benno Schmidt, President of Yale University, notes that
speech codes are a terrible mistake ... Students think that they are codes about building
communities based on correct thoughts, and that's antithetical ... to the idea
of a university." Hentoff, supra note 14, at 152.
"[Speech codes] will
"add to the silence' on
"gut issues' about racism, sexism, and other forms of bias that already impede
interracial ... dialogues." Strossen, supra note 10, at 529.
"I have no doubt ... that the possibility of discipline for uttering racist
statements would deter many students from this critique of affirmative action." Weinstein, supra note 196, at 215.
"It is a shame that the pros and cons of [affirmative action] cannot really be
discussed here. There is censorship going on .... Who's going to submit an
article attacking affirmative action to the student newspaper? You are sure to
be called a racist." D'Souza, supra note 1, at 129 (quoting conversation with University of
Michigan sophomore David Makled).
"Today we see the universities trying to implement a new secular orthodoxy, one
component of which is the imposition of restrictions on racist speech." Sedler, supra note 1, at 638.
"The methods and fervor of the self-appointed language police can lead to a
rigid orthodoxy ...." Kakutani, supra note 14, at B1. There is a
"generally hostile classroom reception regarding any student right of center.
"can be arguably viewed as symptomatic of a prevailing spirit of academic and
social intolerance of ... any idea which is not
" Hentoff, supra note 14, at 153 (quoting Berry Endick, student at New York
University Law School).
n224. Nat Hentoff, P.C. Law Schools, Wash. Post, Dec. 10, 1992, at A12 (quoting
study that shows that students hesitate to offer dissenting views in class for
"fear that professors would decrease their grade").
"The threat of sanctions may deter their exercise almost as potently as the
actual application of sanctions."
NAACP v. Button, 371 U.S. 415, 433 (1963).
n225. This example comes from the Interpretive Guide which accompanied the
University of Michigan's Policy on Discrimination and Discriminatory Harassment
of Students in the University Environment (hereinafter Policy). Lawrence
mistakenly claims that this
speech code was
"poorly drafted." In striking down the Policy, the Michigan District expressly noted that it
would not have done so based solely on the language.
Doe v. Michigan, 721 F. Supp. 852, 859 (E.D. Mich. 1989). Rather, it was unconstitutional due to the enforcement record.
Id. at 860. Several Constitutional law experts at the University of Michigan helped draft
Id. at 855. The policy went through twelve drafts. Id.
n226. Sedler, supra note 1, at 641 (citing Plaintiff's Exhibit Submitted In Support
of Motion for Preliminary Injunction, Doe (No. 89-CV-71683-DT)).
n227. Sedler, supra note 1, at 642 (quoting Plaintiff's Exhibit Submitted in Support
of Motion for Preliminary Injunction, Doe (No. 89-CV-71683-DT)) (alteration in
n228. Sedler, supra note 1, at 642.
n229. Sedler, supra note 1, at 642 n.44 (citing
Doe v. Univ. of Mich., 721 F. Supp. 852 (E.D. Mich. 1989)).
Doe v. Michigan, 721 F. Supp. 852, 858 (E.D. Mich. 1989).
UWM Post, Inc. v. Board of Regents, 774 F. Supp. 1163, 1167 (E.D. Wis. 1991).
n232. Id. (alteration in original).
n233. Benno Schmidt, President of Yale University. Hentoff, supra note 14, at 152.
n234. Sedler, supra note 1, at 645.
Doe v. Michigan, 721 F. Supp. 852, 856 (E.D. Mich. 1989).
n236. Sedler, supra note 1, at 645.
"The buzzword is sensitivity, and the intimidation is intense." Ian Macneil, Robert Braucher Visiting Professor of Law, Harvard University.
D'Souza, supra note 1, at 197.
Speech code proponents argue that racism is something of a
"cultural constant" with whites that can only be relinquished through rigorous sensitivity
training. D'Souza, supra note 1, at 126 (citing a study by the National
Institute Against Prejudice and Violence). Ironically, the vast majority of
incidents on campus have occurred at Northern universities. D'Souza, supra note
1, at 126. Out of one hundred and five racial incidents classified by region,
only seven took place in the South. Thomas Sowell, The New Racism on Campus,
Fortune, Feb. 13, 1989, at 115. As Thomas Sowell notes,
"these events have occurred overwhelmingly in the Northeast, not exactly Reagan
country." Id. The state with the most incidents is Massachusetts. A student at the
University of Michigan was surprised at the problems taking place at his
university. Isabel Wilkerson, Campus Race Incident Disquiets University of
Michigan, N.Y. Times, Mar. 9, 1987, at A12 (stating
"I think of these things happening in the South, not in Ann Arbor [Michigan]."). Id.
n239. Steele considers the politics of difference to be a
"volatile politics in which each group justifies itself, its sense of worth and
its pursuit of power, through difference alone." Steele, supra note 93, at 132. See also D'Souza, supra note 1, at 49 ("White hostility to preferential treatment and minority separatism is a major
force behind many of the ugly racial incidents that have scarred the American
campus"); Bunzel, supra note 140, at 4, 139; Sowell, supra note 140, at 134 (stating
"Much of the intervening time [since the implementation of affirmative action
programs] has seen a steady building of tensions toward the ugly episodes of
recent years, which have now been christened,
"the new racism'"); Arthur M. Schlesinger, The Disuniting of America: Reflections on a
Multicultural Society 102-04 (1991); Race on Campus, U.S. News
& World Rep., Apr. 19, 1993 at 52 ("Clearly, the double standard is a major cause of discontent among whites.").
n240. In 1989, Smith College pledged to quadruple minority representation on the
faculty to 20 percent. D'Souza, supra note 1, at 16. At the University of
Wisconsin-Madison, The Madison Plan, initiated by the chancellor and now
official policy, commits the university to hiring seventy minority faculty in
three years. Under the Michigan Mandate, seventy-six minority faculty have been
hired through affirmative action programs over the past two years. Id. The
University of Iowa hired seven black professors although none of them filled
specific openings in departments. Carolyn Mooney, Affirmative Action Goals,
Coupled with Tiny Number of Minority Ph.D.s, Set Off Faculty Recruiting Frenzy,
Chron. of Higher Educ., Aug. 2, 1989, at A1. See also Sowell, supra note 140,
n241. Steele notes that
"race is, by any standard, an unprincipled source of power." Steele, supra note 93, at 140. Donald Eastman, vice president for development
and university relations at the University of Georgia, notes that
"there is no justifiable moral defense for ethnic or racial segregation ... by
blacks or whites ...." Donald Eastman, The New Segregation, Wall St. J., May 5, 1993, at A22.
n242. D'Souza, supra note 1, at 48.
n243. Many students believe that blacks are admitted under such programs with lower
paper credentials than other students. Steele, supra note 93, at 134.
Unfortunately, the existence of these programs has not improved graduation
rates of blacks students. Id. Only 18 percent of black students admitted on
affirmative action programs at Berkeley graduate. D'Souza, supra note 1, at 39.
However, blacks admitted under the regular program graduate at a 45 percent
rate. Id. Stephen L. Carter, Professor of Law at Yale, refers to affirmative
"racial justice [on the] cheap." Stephen Carter, Reflections of An Affirmative Action Baby 72 (1991). Shelby
Steele believes affirmative action programs reinforce
"the myth of [racial] inferiority." For an excellent discussion of the double standards applied to admissions at
elite American universities, see Sowell, supra note 140, at 133-73.
n244. D'Souza, supra note 1, at 48.
n245. D'Souza, supra note 1, at 4.
n246. Steele, supra note 93, at 90.
n247. There may be a subtle, but sinister rationale behind the willingness of
university administrators to accede to the demands of minorities. Consider this
comment by Kenneth B. Clark, the distinguished black social psychologist:
"The white liberal .. . who concedes black separatism so hastily and
benevolently must look to his own reasons, not the least of them perhaps an
exquisite relief." Schlesinger, supra note 239, at 114.
"Institutionalized separatism only crystallizes racial differences and magnifies
racial tensions .... Most ominous about the separatist impulses is the meanness
generated when one group is set against another." Schlesinger, supra note 239, at 104, 110.
n249. A popular T-shirt motto is
"It's a black thing-you just don't understand." Eastman, supra note 222, at A22.
n250. Schlesinger, supra note 239, at 141.
n251. Schlesinger, supra note 239, at 140.
"Whites are now less willing to endure unfairness to themselves in order to
grant special entitlements to blacks...." Steele, supra note 93, at 122.
n253. Steele, supra note 93, at 122.
n254. D'Souza, supra note 1, at 136-40. Sowell, supra note 140, at 155-69
(discussing tactics used by college administrations to combat
n255. D'Souza, supra note 1, at 134-35.
n256. See Sowell, supra note 140, at 135 (discussing Professor Clyde Summers' 1969
analysis of the probable impact that preferential admission policies at law
schools would have on black and white students and race relations in general).
n257. Schlesinger, supra note 239, at 16.
"The ethnic ideology inculcates the illusion that membership in one or another
ethnic group is the basic American experience." Schlesinger, supra note 239, at 112.
n258. See supra note 140 and accompanying text. So hegemonic is group identity, that
"group's consciousness [is] the victim's consciousness." Matsuda, supra note 1, at 2373.
n259. Matsuda, supra note 1, at 2362.
n260. By enforcing civility on campus,
speech codes will ensure that students are no longer
"punished" for group identification. Matsuda, supra note 1, at 2370-73.
n261. Schlesinger states that the
"ethnic interpretation of American history ... reverses the historic theory of
America as one people - the theory that has thus far managed to keep American
society whole." Schlesinger, supra note 239, at 16.
n262. Schlesinger notes the significance of the success of the American experiment:
"History is littered with the wreck of states that tried to combine diverse
ethnic or linguistic or religious groups within a single sovereignty. Today's
headlines tell of imminent crisis or impending dissolution of one or another
multiethnic polity ...." Schlesinger, supra note 239, at 129.
"He is an American, leaving behind him all his ancient prejudices ... The
American is a new man, who acts upon new principles ... Here individuals of all
nations are melted into a new race of men." Hector St. John de Crevecoeur, Letters From an American Farmer (1782)
"The mechanism for translating diversity into unity has been the American Creed,
the civic culture - the very assimilating, unifying culture that is today
challenged, and not seldom rejected, by the ideologues of ethnicity." Schlesinger, supra note 233, at 131.
n265. There is some troubling evidence that black students dismiss this ethic as
"being white." However, some black Americans embrace the idea of the United States as a
transformative nation. See Tim W. Ferguson, Getting Down to Business After the
Verdict, Wall St. J., April 13, 1993, at A15.
n266. Matsuda suggests that individual achievement (by minorities) is meaningless
"when the group is subordinated, even the lucky counterexample feels the
downward tug." Matsuda, supra note 1, at 2362. However, some academics contend that the
emphasis on group identity may be detrimental to the success of black
Americans. Carter, supra note 242, at 238-39, 102-23 (noting that the emphasis on group solidarity often
silences dissenting views within the group); Steele, supra note 93, at 159-63
"we are still spilling scarce energy into the pursuit of collective esteem at
the expense of individual development.... Opportunities for development can
finally be exploited only by individuals").
n267. Schlesinger, supra note 239, at 112.
Prepared: March 26, 2003 - 5:02:29 PM
Edited and Updated, March 27, 2003
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