Hate Speech Codes on College Campuses

Article excerpt

Amid great controversy, universities in the early 1990s began attempting to regulate "hate speech." Courts struck down some of these codes as violations of the First Amendment, but various versions continue to exist.

Proponents of regulation argue the university must be a safe place in which all students have equal access to education, free from intimidation. Opponents of the codes maintain that universities, above all other institutions, must be free of censorship in the quest for knowledge and the free exchange of ideas.

Definitions of hate speech differ, but the term may be loosely defined as offensive or abusive words, about or directed toward historically victimized groups.

In the late 1980s and early '90s, colleges and universities reported an increase in racist, sexist, anti-Semitic and heterosexist behaviors and attitudes. Reported incidents included a "black face" fraternity party at Texas Tech, swastikas drawn on the doors of Jewish students at UCLA and students wearing sweatshirts reading "Anti Fag Society" in Alaska.

In response to such incidents, a number of institutions enacted disciplinary policies that prohibited speech and conduct that demeaned or harassed individuals based on those individuals' race, sex, sexual orientation, ethnicity or other disadvantaged status.

These disciplinary codes were particularly problematic at public universities, which are bound by the "free speech" protections of the First Amendment, and plaintiffs rather quickly challenged the constitutionality of these new policies. The hate speech codes at both University of Michigan and University of Wisconsin were struck down by separate federal courts, in both cases ruling that the policies were both "overbroad," in that they banned expression that is protected by the First Amendment, as well as "impermissibly vague," because it was not clear exactly what type of conduct or expression might violate the codes. Other federal courts and state courts followed with similar rulings.

Interestingly, however, hate speech codes have not disappeared from either public or private universities. Often they have been narrowed so that they fall under the anti-harassment provisions of civil rights laws, the argument being that hate speech constitutes behavior that creates a hostile learning environment. …