In his essay decrying Emory's policy against discriminatory harassment, (Emory Report, March 20) Frank Lechner shows himself to be a free-speech absolutist. Nothing, in his view, should stand in the way of anyone to say anything at any time, especially in a university. Yet even if the principle of free speech could be shown to take precedence over other principles guiding the university, the putative harm of Emory's conduct code does not outweigh the real harm resulting from the harassment it aims to reduce.
To dispose of the easy points first: the legal record is more ambiguous than Lechner believes. Lechner cites cases suggesting that if Emory were a public university, its code would be overturned. But he ignores the numerous exceptions to First Amendment absolutism: some forms of obscenity; fighting words; language posing clear and present danger; and, interestingly enough, expressions of contempt for judges and teachers. The Supreme Court has upheld the EEOC's guidelines against purely verbal sexual harassment--guidelines on which the Emory code is based. And while the court has ruled criminalization of hate speech unconstitutional, it has permitted juries to increase penalties for crimes involving such speech. Finally, in University of Pennsylvania v. EEOC in 1990, the court held that tenure files--whose confidentiality Penn defended as vital to the academic enterprise--could not be kept from bias investigations. Thus, in the court's view, even the principle of academic freedom does not protect all speech.
Let me affirm that I share Lechner's ideal of academic freedom. If the university stands for anything, it stands for freedom to pursue the mind's curiosity down whatever avenues of study present themselves, and freedom to talk about that study in public. The university has demonstrated that truth can best be clarified by discussion, by public weighing of claim and counterclaim. Thus the Emory conduct code explicitly protects academic freedom.
Far from muddling the issue, as Lechner claims, the Emory code makes academic freedom its very essence and foundation. It protects academic freedom by recognizing that freedom can be undermined by threats and harassment. People do not feel free to speak when the campus is pervaded by hostility toward them individually--when the message being delivered is not, "your argument is stupid and I disagree with you," but "I wish you didn't exist." Epithets and slurs are not debatable.
It is not the freedom of the forum that is at issue at Emory. The question is whether truth can have its day when the forum becomes a gladiators' arena--vicious, no-holds-barred, requiring victory by means of personal destruction of the opponent. The question is whether the appropriate metaphor for the university is what one commentator has called "the naked public square"--a place of such severe neutrality about values that the advantage goes to the loudest shouter, the biggest mob, or the most persistent hater. Putting First Amendment considerations before all others makes the university a laissez-faire market place where, linguistically, anything goes. For pedagogical reasons as well as philosophical ones, universities cannot afford to be such places.
Philosophically, we mistake the nature of the university if we assume that it's value-neutral. Helen Vendler reminds us of Wordsworth's line, "What we have loved, others have loved, and we will teach them how." We take pains to pass on not merely information but, more importantly, the habits and manners of our civil society. Pedagogically, we fall short of our calling if we assume value neutrality, because then we fail to teach the next generation about just what sort of achievement the university represents.
The university is a place apart. It differs in kind from society at large, and the heart of that difference is the insistence that the acquisition of knowledge and wisdom requires not only free expression, but also an environment conducive to engagement that leads to truth. We learn that lesson among many from Thomas Jefferson.
In 1825, shortly after the opening of the University of Virginia, students rioted over the curriculum. Jefferson, who had founded the university believing in students' right to self-government and self-discipline, personally helped to quell the riot and recommended regulations stricter than anything now seen at Emory--or Bob Jones University. I think of the Rotunda and the Ranges at Charlottesville as representing, with Monticello, the zenith of the Enlightenment in America. Yet even the Enlightenment cannot proceed without a definition of its proper measures.
What Emory's policy intends is a definition of our proper measures. It seeks to make academic freedom possible by making the ground fertile. It seeks, in the words of Gordon Allport, to "create a public conscience and a standard for expected behavior."
It's always possible to point to lurking demons and then suggest that one's adversary in the code debate, while not one of the demons, might inadvertently abet them. Thus Lechner raises the ghost of McCarthy and claims that Emory's conduct code points us toward a revival of the Senator's methods. One could as well point to earlier fascists, however. The German universities--engines of remarkable, perhaps unparalleled intellectual achievement--experienced in the 1930s the drowning out of reason, debate and academic freedom by men in brown shirts, who passed judgment not on scholars' language but on their religious, ethnic, physical or sexual attributes. Academics orthodox in every academic way were condemned for nonacademic reasons.
The university long has been the guardian of the learning process, and Lechner underscores this. But we must ask whether the other, the person, does not also need protection. The pedagogical challenge before us is to reaffirm that learners are as valuable as learning; that just as Jefferson had to expel his nephew for disrupting the process of education, we have a responsibility to foster an environment that respects the individual scholar.
The question is whether we as educators are capable of passing to the next generation the substance of what has been passed to us--a heritage in which free thought flourishes because it's pursued liberally within the bounds of civil discourse. This may beg the question, "What makes for civil--as opposed to uncivil--discourse?" I suggest that if we cannot answer that question, we have less to teach our students than I'd hoped. In that case we're beyond the point at which a conduct code will have either benefit or harm.
Gary Hauk is Secretary of the University.