The American Association of University Professors is today issuing a report that finds Louisiana State University at Baton Rouge violated the rights of two faculty members who, in separate cases, took stands that were unpopular with administrators.
Submitted by Lynn Adler on March 25, 2005 - 4:00am
Imagine that you are looking for a job. Imagine that you are good at what you do, and you have a choice of opportunities. Imagine being offered jobs that were comparable in almost every way, but located in different states.
In one state, you and your spouse would be able to use a family health insurance plan, visit each other in the hospital, and have a relationship and family that was legally recognized. In the other state, your spouse would have to buy separate health insurance, and there would be no guarantee that doctors, hospitals, lawyers, banks, schools, or anyone at all would recognize your relationship or family.
It’s hard to imagine that anyone would select the second option. And yet, states seem to be lining up to become the next to do away with any recognition of, or benefits for, same-sex relationships. It will be difficult to track the economic impact of these new laws. Some gay and lesbian faculty members will stay put, either because of limited opportunities elsewhere or because of their roots in their communities. But there are also academics who will vote with their feet, and leave institutions in such states.
I left a state that did not recognize my relationship in favor of one that did. I was hired as an assistant professor of biology by the Virginia Polytechnic Institute and State University in 2001. Although I knew that Virginia was a conservative state, I found the department to be very friendly and supportive. Colleagues were welcoming toward my partner, and we enjoyed living in the area.
I believe that I contributed substantially to teaching, research and grant funding during my time at Virginia Tech. In three years, I taught hundreds of students, involved over 40 undergraduates in research, and was awarded over a half million dollars in competitive grants from the National Science Foundation. Most of these funds went toward hiring and training undergraduate and graduate students in Virginia.
During those three years, however, my partner and I paid thousands of dollars for private health insurance when my partner was working part time, because she could not get those benefits through me. We did all we legally could to provide ourselves with the rights enjoyed by heterosexual couples, including the right to visit each other in the hospital and make medical decisions for each other. But we wanted to have a family, and in Virginia we could not both be legally recognized as parents of our future children.
Because it seemed clear that laws of Virginia were not going to change in any way beneficial to us in the near future, I went on the job market in 2004. I was offered an exciting position at a university in Massachusetts, which had just become the first state where same-sex couples could get married. By contrast, around the same time the Virginia legislature passed the "Marriage Affirmation Act." This bill outlawed any same-sex "partnership contract or other arrangements that purport to provide the benefits of marriage." Under some interpretations, this law negated the medical powers of attorney we had obtained to guarantee hospital visitation in case of emergencies.
Virginia Tech attempted to retain me in my position with a counter offer, and my partner and I had several discussions about what it would take to convince us to stay. In the end, we concluded that no amount of salary, extra funds, or other benefits would counteract the risk that our relationship might not be recognized in a time of crisis. While some businesses, schools or hospitals might acknowledge our relationship, we were not willing to risk that they would not. If they did not, the laws of Virginia would support them.
When I announced my departure, I received an e-mail from an administrator who told me that others had left for similar reasons, but had done so quietly. I spoke out about why I was leaving, and I'm writing this article because I believe it's important for educators and politicians to understand that discriminatory laws have a price.
My partner and I moved to Massachusetts and promptly married. Naturally, I have moved my research and whatever funding could be transferred to my new institution, and I am building a federally funded program in my new home. In my first six months, I've brought in more than $150,000 in competitive national grants.
Our primary reason for leaving Virginia was to gain the rights that come from legal recognition of our relationship and future family. It is clear that we would not obtain those rights in the near future in Virginia. States that choose to discriminate against their same-sex couples will continue to lose valued citizens to states that provide the same rights to all individuals, couples and families.
Lynn Adler is an assistant professor of entomology at the University of Massachusetts at Amherst.
As Commissioner Bud Selig and several prominent players attempted to evade subpoenas for recent House of Representatives hearings on baseball’s steroid problem, Rep. Henry Waxman observed, “What strikes me is that baseball doesn’t want to investigate it and they don’t want us to investigate it.” The California congressman summed up baseball’s policy as “don’t know, don’t tell.”
This “Selig Strategy” could also describe the academy’s response to indications that the nation’s humanities and social sciences departments suffer from a lack of intellectual and programmatic diversity. Calls for outside inquiries have been denounced as violations of academic freedom, while few if any signs exist that the very internal academic procedures that created the problem can successfully resolve it.
Instead of imitating baseball’s strategy of trying to cover up relevant information, the academy should bring transparency to the now-cloaked world of faculty hires and in-class instruction, compiling and publicizing the necessary data, probably through college and department Web sites. Such a response would allow the educational establishment to employ the habits of the academic world, namely reasoned analysis through use of hard evidence, to address (and, when false, disprove) specific allegations of ideological bias. At the same time, the exposure associated with greater transparency might deter those professors inclined to abuse their classroom authority for indoctrination.
Calls for any greater openness have encountered fierce resistance from some quarters of the faculty — as seen in many of the contests for the American Association of University Professors' governing council, for which balloting concludes on April 15. Four of the ten races (Districts 1, 3, 8, and 10) feature one candidate who defines academic freedom as chiefly a tool for protecting the professoriate’s dominant ideological faction -- to the point of resisting outside scrutiny and limiting publicly available information about academic matters. In a fifth race, for District 7, both candidates have endorsed this vision. This cohort has deemed transparency a negative force, and instead has outlined a vision of:
Imagined reality, in which leftists and far lefists -- despite myriad surveys suggesting their substantial overrepresentation on the nation’s campuses — represent a besieged minority in the academy. In 1999, for instance, District 8 candidate Ellen Schrecker doubted that if “America was to enter another Vietnam War,” junior faculty members would “express themselves as freely as we did in the 1960s.” Though the professoriate’s outspoken hostility to the Bush administration’s Iraq policy belied this prediction, the platform of District 7 nominee Jeffrey Halpern nonetheless continues to assert, "The exercise of free expression among tenured faculty is being radically curtailed in the name of national security." Radically curtailed?
Professorial privilege, in which faculty possess an apparently unlimited right to bring their political agendas into the classroom. After a 2001 job action by the California Faculty Association included calls for professors to insert pro-union statements into their course syllabi, District 1 candidate Susan Meisenhelder scoffed that administrators who protested the policy overlooked how “important university traditions such as academic freedom” allowed professors to infuse their courses with political material. In this vision of the academy, undergraduates, like administrators, cannot even publicize their dissent. In early 2005, Schrecker charged that students who criticized the imtimidating behavior of anti-Israel professors of Middle Eastern studies at Columbia University wanted “to impose orthodoxy at this university, often in the name of academic diversity.” Better, evidently, for universities to cover up classroom misconduct, especially if the professors in question are expressing the preferred viewpoint on contemporary foreign policy issues.
Freedom from oversight, in which faculty members are responsible to no one and the goal of professional organizations is to conceal information that faculty ideologues find inconvenient. District 3 candidate Roxanne Gudeman promises to contest "unacceptable intrusions” that seek “to monitor and censor the political, ideological, and ethnic backgrounds of members of the academy and their teaching and research.” (Gudeman also champions ethnic and racial diversity programs, which, if nothing else, monitor the “ethnic backgrounds of members of the academy.”) District 10 candidate Michael Bérubé has committed himself to fighting "concerted and well-organized attacks on the professoriate,” including calls for an advisory board for Title VI area studies programs -- as if professors, alone among recipients of federal appropriations, are entitled to receive public moneys without legislative oversight.
The polar extreme of these viewpoints, of course, is David Horowitz’s Academic Bill of Rights (ABOR), which the AAUP has formally condemned as a political intrusion into the academy. The “Selig Strategy,” however, represents a remarkably ineffective response to the ABOR movement. Public support for ABOR derives from a perception that most professors have little interest in restoring intellectual diversity to the academy. In light of scandals at such prestigious institutions as Columbia and Colorado, faculty organizations issuing blanket assertions that all is well in their ranks and dismissing outside criticism as illegitimate only reinforces the impression that the professoriate has something to hide regarding the ideological tenor of classroom instruction.
There are, of course, occasions — the McCarthy Era was one, the early stages of the Vietnam War, perhaps, another — that justify aggressively utilizing the principle of academic freedom to prevent inappropriate outside scrutiny. But higher education, like baseball, is an institution whose survival depends on public support. Just as Mark McGwire sacrificed the public’s trust when he told congressmen that he would not “talk about the past,” so too will higher education’s public standing be diminished by continued claims that academic freedom allows the professoriate to ignore allegations of ideological bias. Even institutions not reliant on taxpayer support cannot long flourish in an atmopshere of widespread public distrust of the academy’s values.
Fortunately, a middle ground exists between the “Selig Strategy” on the one hand and having state legislatures dictate classroom content on the other. Transparency — not a claim that academic freedom prevents public scrutiny — represents the most effective way to respond to criticism of bias among the professoriate. “Sunlight is the best disinfectant,” noted Alan Charles Kors and Harvey Silverglate in Shadow University, applying Justice Louis Brandeis’ famous dictum to the problems of higher education. The Internet provides an unparalleled opportunity to demonstrate the inner workings of the academy to legislators, trustees, alumni, and taxpayers. If professors have nothing to hide, they have nothing to fear from drawing back the curtains regarding personnel and curricular actions.
To my knowledge, no university requires departments to publicly explain how and why they have allocated new lines. Imagine if every other year, every college department published on its Web site a statement about shifts in lines. For example, a religion department that had replaced one of four slots studying Christianity with one focusing on Islam might explain that it did so because of increased scholarly and student interest, post-9/11, or because the field had produced important new scholarship on Islam-related themes.
My own discipline, for example, has witnessed a sharp decline in positions in political, diplomatic, constitutional, and legal history over the past generation. Perhaps intellectually compelling reasons exist for dramatically shifting staffing toward adherents of the trinity of race, class, and gender. Yet absent any public justification, it’s hard to think of a reason other than ideological bias why, say, the University of Michigan’s History Department, whose ranks already included five U.S. women’s historians, used new lines to hire three more specialists in women, gender, and sexuality — all while the department lacks even one historian currently working in U.S. foreign policy.
Even more discouraging, despite the credible allegations of in-class bias by professors, I know of no university that requires faculty members to publicly post their course descriptions, syllabi, assignments, and lecture notes. The latter requirement, admittedly, would mean more work for professors, in that notes would need regular updating, but it also would provide concrete evidence that faculty members are always revising their in-class presentations to reflect new scholarship in their fields, while seeking to teach the subject matter at hand rather than attempting to shape their students’ viewpoints on controversial contemporary issues.
Of course, this strategy also would expose improper conduct to the light of day — as when Professor Joseph Massad, of Columbia’s Middle Eastern studies department, informed one class that “Israelis introduced plane hijackings” to the Middle East and that Zionist leader Theodor Herzl allied with “anti-Semites” to “help kick Euro[pean] Jews out.” Faculty members committed to the indoctrination approach could theoretically post neutral lecture notes while maintaining wholly biased classroom presentations. But such a strategy would constitute outright deception on the part of the professor, behavior that few administrations would be likely to tolerate.
In their platform, Schrecker (who has darkly hinted of an Internet-related “virtual McCarthyism”) and her cohort oppose any movement toward greater transparency. Might they fear that sunlight would confirm some or all of the outside critique of ideological bias? More ominously, do they speak for a majority in the academy?
“The thought police,” Harvard professor Stephan Thernstrom recently observed, are now “not just outside, on some congressional or state legislative committee. They are inside too, in our midst.” The educational establishment can imitate baseball’s 1990s strategy and ignore the problem, hoping that no one notices the ever more powerful internal threat to academic freedom. But, as Bud Selig and Mark McGwire have just discovered, the “don’t know, don’t tell” approach entails substantial risks. In this situation, transparency, not utilizing “academic freedom” to shield professors from outside scrutiny, represents the best course for the academy to adopt.
KC Johnson, a professor of history at Brooklyn College and the CUNY Graduate Center, is a visiting professor at Harvard University for the spring 2005 term.
Freedom of speech is crucial both to a healthy democracy and the life of the mind. The First Amendment to the U.S. Constitution prohibits Congress from any act that would abridge it and the charters of most of our colleges and universities recognize that freedom of thought and speech are essential to a healthy academic community.
Yet, freedom of speech has been a contested value since the birth of the Republic, most commonly in periods of war, from the Alien and Sedition Acts of 1798 through the USA Patriot Act of 2001. It isn't surprising, then, that freedom of speech is now under siege. What is new in our academic communities is that it is threatened both from within and from outside them.
The internal threat to free speech in academia is posed by speech codes. They take many forms and vary from one college to the next university. After the 1960s, when American colleges and universities ceased to operate in loco parentis, campus speech codes emerged on one campus after another as a means of securing a "safe space" for some students who were offended by certain kinds of speech. On one campus or another, speech that is discomforting, embarrassing, flirtatious, gender specific, inappropriate, inconsiderate, harassing, intimidating, offensive, ridiculing or threatens a loss of "self-esteem" is banned by speech codes.
Too often, they target student critics of academic bureaucracy. Taken literally, speech codes would ban healthy jeering at a visiting sports team. Wouldn't want to intimidate those Aggies! More importantly, teachers have to be able to urge students to consider perspectives that they had not previously considered, without fear of being accused of being "offensive." Ultimately, speech codes are problematic because they vest final authority in the subjectivity of the offended.
Whether it is "intentional or unintentional," for example, Brown University bans all "verbal behavior" that may cause "feelings of impotence, anger, or disenfranchisement." The nation's Founders, who did not mind offending British authorities, would have been ill-educated by such constrictions on free speech.
The problem with speech codes is that speech that should be self-governed by good manners and humility is prescripted by inflexible legal codification. Fortunately, however, the Foundation for Individual Rights in Education has fought and won a series of legal battles that have curtailed the prevalence of speech codes in public higher education.
In private colleges and universities, where First Amendment rights do not necessarily prevail, the struggle continues on an institution by institution basis. Just when there is good news to report about the unconstitutionality of speech codes on public campuses, however, new threats to free speech arise from outside the academic community.
They come from the Center for the Study of Popular Culture. The center and its legal arm, the Individual Rights Foundation, are led by David Horowitz. A militant activist on the left in the 1960s, Horowitz abandoned it 25 years ago to become a militant activist on the right. Most recently, he has campaigned for enactment of an "Academic Bill of Rights."
Like campus speech codes, Horowitz's Academic Bill of Rights appears well intentioned. Insisting that academic communities must be more responsive to outside criticism, it adopts a form of the American Association of University Professors' 1915 "General Report of the Committee on Academic Freedom and Tenure." It holds that political and religious beliefs should not influence the hiring and tenuring of faculty or the evaluation of students, that curricular and extra-curricular activities should expose students to the variety of perspectives about academic matters and public issues, and that institutions must not tolerate obstructions to free debate nor, themselves, become vehicles of partisan advocacy.
Who could oppose such commitments? They are already features of academe's assumed values. Yet, the American Association of University Professors and the American Civil Liberties Union criticize Horowitz's "Academic Bill of Rights" as an effort to "proscribe and prescribe activities in classrooms and on college campuses."
One has only to look at the legislative progress of Horowitz's political campaign to understand why. His bill has been introduced in Congress by Rep. Jack Kingston, but it's had greater promotion in the state legislatures of California, Colorado, Florida, Georgia, Indiana, Maine, Massachusetts, Ohio, Tennessee, and Washington.
Instead of being the even-handed vehicle it claims to be, everywhere it is a function of right-wing attacks on academic communities. In Florida, for example, Rep. Dennis Baxley says that the bill he introduced will give students legal standing to sue professors who do not teach "intelligent design" as an acceptable alternate to the theory of evolution. His critics respond that it could give students who are Holocaust deniers or who oppose birth control and modern medicine legal standing to sue their professors. Beyond the governing authority of Florida's public colleges and universities and in the name of free thought and free speech, it would encode in state law restrictions against those values.
The Founders, who recalled their own exercise of free speech and free thought, when they challenged British governing authority, wrote guarantees protecting them from constricting government action. In academic communities, we need an alliance across ideological divides to support free speech by abolishing "speech codes" and to fight the "Academic Bill of Rights" in state legislatures and the Congress because it is a Trojan Horse that intends the opposite of what it claims on its face.
David Beito, KC Johnson and Ralph E. Luker
David Beito is an associate professor of history at the University of Alabama; KC Johnson is a professor of history at Brooklyn College and the CUNY Graduate Center. Ralph E. Luker isÂ an Atlanta historian.
It has been heartening to witness the recent runaway success of Princeton emeritus Harry G. Frankfurt’s latest book, On Bullshit. First published as an essay in 1988, Frankfurt’s splendid study is largely an effort to distinguish between lies and bullshit. A liar, Frankfurt notes, acknowledges truth-systems yet tries to pass off information that is not true. "Someone who lies and someone who tells the truth," he tells us, "are playing on opposite sides, so to speak, in the same game." The bullshitter, by contrast, fails to really acknowledge the validity of any truth-claims or truth-systems.
The author concludes that "the fact about himself that the liar hides is that he is attempting to lead us away from a correct apprehension of reality; we are not to know that he wants us to believe something he supposes to be false. The fact about himself that the bullshitter hides, on the other hand, is that the truth-values of his statements are of no central interest to him; what we are not to understand is that his intention is neither to report the truth nor to conceal it."
When applying Frankfurt’s useful distinction, we need, at the very least, to recognize that if something about a particular piece of bullshit happens to be true this does not make it any less bullshit, and that lies and bullshit are by no means mutually exclusive.
Enter L.A. tabloid editor David Horowitz, liar extraordinaire and author of the incomparable bullshitting manual The Art of Political War and Other Radical Pursuits (Spence Publishing, 2000). This book, much applauded by Karl Rove, promulgates a political endgame in which brute force triumphs over any notions of intelligence, truth or fair play. The author contends that "[y]ou cannot cripple an opponent by outwitting him in a political debate. You can only do it by following Lenin’s injunction: ‘In political conflicts, the goal is not to refute your opponent’s argument, but to wipe him from the face of the earth.'"
What, exactly, is he getting at in this passage? Since, on the home front, it would be illegal to actually liquidate the enemy, Horowitz does not want us to take Lenin’s apocalyptic injunction too literally. Instead, he believes you should drown your political opponents in a steady stream of bullshit, emanating every day from newspapers,TV and radio programs, as well as lavishly funded smear sites and blogs. He also thinks you should go on college lecture circuits where you can use incendiary rhetoric to turn civilized venues into the Jerry Springer show, and then descend into fits of indignant self-pity when someone responds with a pie to your face.
The only honorable way to combat Horowitz’s bullshit is by fully repudiating his modus operandi, and depending instead on the very wits, arguments and refutations that the Leninists repudiate. Indeed, these methods prove optimal for exposing any number of Horowitzian techniques, ranging from cooked statistics,race-baiting and guilt by association to editorial foul play and baffling logorrhea. But refuting Horowitz is not simply a matter of observing the tide and eddies in an unending stream of bullshit. It also means trawling through that same discharge in order to extract any number of dangerous lies.
Earlier this year, I spent a good deal of time refuting Horowitz’s so-called Academic Bill of Rights, and explicating the twists and turns of his instrumentalist version of "truth." In the course of our exchange, Horowitz spewed a lot of the usual BS, but he also floated some audacious lies. For instance he tried to convince readers that his conservative-funded bill -- basically just a guileful attempt to sanction the Fox News agenda in the nation’s universities -- was actually a non-partisan document with intelligent academic backing. To bolster his case, he tried to make us believe that three "left wing" professors (Todd Gitlin, Michael Bérubé, and Stanley Fish) and one avowed libertarian (Eugene Volokh) actually told him that they didn’t mind the bill.
After I debunked that lie (simply by asking the four professors what they thought about the bill), Horowitz went on to claim that neither Gitlin, Bérubé nor Fish "had any objection to the Academic Bill of Rights" even though I had quoted their extensive objections. (Who but a consummate bullshit artist could hope to construe the phrases "a bad idea," "a nonstarter" and "a disaster" as endorsements?)
Last Friday, in a lame provocation following a debate with me on PBS’s Uncommon Knowledge (a show destined to air, in a trimmed version, around June), Horowitz actually told the moderator Peter Robinson, in my presence, that the Academic Bill of Rights had met with the approval of Fish, Gitlin, Bérubé and Volokh. (Really? Robinson asked incredulously. No, not really, I said; I’ll send you a web link. Horowitz settled into his customary rage.)
During the filming of that segment, my rabid opponent recycled a much bigger and more dangerous lie about the American Association of University Professors -- one already published in the same smear in which he flaunted his imaginary supporters. There he states that "[t]he AAUP ... was silent or collusive in the face of the most brutal abrogation of First Amendment Rights in 50 years, when university administrations in the 1980s and 1990s instituted 'speech codes' to punish students for politically incorrect remarks. The AAUP has been silent on all ... infringements of free speech, or it has lent its support to the political thought police."
This is classic Horowitziana -- a complete lie mired in a mighty river of bullshit. Although the AAUP did take a few critical years to develop its policy against speech codes, for Horowitz to say that it supports these codes is no better than calling him a leading exponent of kitsch Marxism because he happened to be one for a decade or two.
By lying about the AAUP, Horowitz hopes to divert readers from the fact that this fine organization came out categorically against all university speech codes in a resolution approved in 1992. That document, reprinted in AAUP’s fully-indexed Redbook, unambiguously asserts that "[o]n a campus that is free and open, no idea can be banned or forbidden," and that "rules that ban or punish speech based upon its content cannot be justified."
Why is Horowitz so eager to make us think that the AAUP actually supports speech codes and "political thought police"? Mainly so he can then construe their reasoned resistance to his efforts to police knowledge and relativize truth as an unreasonable affront to student liberty. This rhetorical inversion of the truth is part of the larger strategy of doublespeak that leads him to couch his coercive speech legislation in the language of freedom and diversity, as if it were some kind of newly fortified version of the First Amendment. Like the line about his professorial support group -- a fiction designed to make a partisan power-grab look like a movement with mainstream academic backing -- these twistings of the truth are part of the same campaign of Horowitizian bullshit, lies and doublespeak. It’s a dirty job all right, but we need to keep exposing this fraudulent talk for what it is.
Graham Larkin is a humanities fellow at Stanford University, where he teaches in the Department of Art and Art History.
Imagine a college student returning to campus next fall and being greeted by a student government representative who asks her if she is devoutly religious or not. She answers “yes” and the representative responds, “I am sorry, the student government has decided that the separation of church and state means that, as state college, we have to be free of religious students. You may want to consider a religious college.” Next imagine this befuddled student taking her complaint to the president of the college and he says “Yes, I know the student government’s interpretation of the Establishment Clause is wrong and utterly violates the U.S. Constitution, but I don’t want to interfere with their autonomy. Besides this is a ‘teachable moment.’ If they eventually get this ‘no religious students on campus’ decision in front of me, however, I will veto it. In the meantime, have you considered a religious college?”
While I have seen abuses of the Establishment Clause almost as ridiculous as this in my career, I use the above example to illustrate the absurdity of a public college delegating students’ constitutional rights to the student government. In cases across the country, however, administrations have stood idly by while student governments pass rules and make decisions that flatly violate the Constitution. One recent case that demonstrates this phenomenon involves the University of Wisconsin at Eau Claire, where the student government passed a rule in March banning groups with a "particular ideological, religious, or partisan viewpoint" from receiving student-fee funding.
This may not seem like a particularly big deal to some. What the students and many observers don’t seem to understand is that profound moral and constitutional principles are violated by this rule.
The case no one seems to have adequately explained to these students is the 2000 U.S. Supreme Court case Board of Regents v. Southworth. In that case a group of students (also at the University of Wisconsin, in that case at Madison) objected to the mandatory student fee because much of the money -- money they were forced to pay in addition to their tuition -- went to support groups they fundamentally disagreed with. This is a serious civil liberties concern. As bad as it may be to tell citizens what they can’t say, it is far worse to tell them what they must say, and perhaps worse still to tell them they must directly fund groups that they fundamentally oppose. Why, for example, should pro-life students be forced to give money to pro-choice student groups, or gay students be forced to give money to groups that believe homosexuality is sinful?
The Supreme Court in Southworth, however, did not see this as forced support of other’s opinions as long as certain conditions were met. In this unanimous decision, Justice Kennedy argued that, while people should not be forced to directly subsidize speech they despise, the student-fee system was more akin to a subsidy of free speech for all students in general -- as long as the collected funds were distributed without regard to the viewpoint of the student groups. The decision was a kind of constitutional compromise: public colleges may collect mandatory student fees if, and only if, student groups of every opinion (or no opinion at all) could apply for funds on an equal basis. While colleges would have every right to set up “viewpoint-neutral” criteria for funding, like requiring a certain number of students to be a members before being recognized or only funding on-campus events, the fact that students or administrators did not like the message of particular student group could not be used to deny a group funding from the mandatory student-fee pool.
Other options are also open to public colleges under Southworth. Public colleges can, for example, eliminate student fee funding altogether, or they can designate its use for narrow content-neutral categories, like designating fees exclusively for intramural sports, or monthly social events. The analysis gets trickier if a college with mandatory student fees banned groups with formal ties to outside political groups like the College Republicans or the College Green Party.
In order to stand a chance of surviving a Southworth challenge, the college would likely have to ban funding for all groups associated with outside organizations (a tricky and difficult standard to administer, that would doubtless prevent many students from forming the groups they would prefer to form) but even doing that would not rule out the chance of a lawsuit. Anytime administrations, and, in particular, student governments are empowered to take the content of a group into consideration the possibility of such a standard being used against groups with unpopular viewpoints (and, thereby, violating Southworth) presents itself.
Unfortunately Southworth’s requirement of “viewpoint neutrality” is often badly misunderstood and the Eau Claire student government has turned the concept completely on its head. Over the past year the student government and some members of the student media have interpreted "viewpoint neutrality" as meaning that they could not fund student groups that had any particular viewpoint or "bias." As part of growing trend coming from both the left and the right to route out "bias" on campus, a ranking student representative was even quoted in Eau Claire’s student newspaper as saying, "We want to exclude any groups that would be religious in nature, political in nature or anything that would have a political agenda [from being funded through student segregated fees]."
This statement directly contradicts numerous binding Supreme Court cases, including Southworth and Rosenberger v. Rector & Visitors of the University of Virginia, and flatly discriminates against both religious and secular viewpoints. Why didn’t the administration offer some guidance to the students? After all, the student government was publicly contemplating passing a rule that violated the U.S. Constitution for months.
The Foundation for Individual Rights in Education wanted to know why the administration was allowing their students to flounder and then flout the Constitution so blatantly, so it wrote the president and the upper administration. In an April 6 letter, FIRE emphasized a point that should be clear to any high school civics class: "As a state institution, the university and its administrators should understand that UWEC has a non-delegable duty to ensure that the First Amendment rights of its students are protected, and that no federal, state, local, or university rule, policy, or regulation can trump the exercise of rights guaranteed by the United States Constitution ." FIRE received a belated reply from the general counsel that allegedly the policy was “not yet in effect” and was pending review by her office, which would guide the university to deal with the policy in compliance with Southworth .
While this gives some hope that the rule will eventually be overturned, during the previous fall the student government refused to recognize a student magazine called The Flip Side because of its "progressive bias." The new, highly unconstitutional, regulation passed on March 14, 2005. The students have been laboring under the viewpoint that strong points of view are bad for months now. What exactly is the administration waiting for?
In previous situations where student governments have attempted to limit the free speech rights of other students, like University of Oregon where the student government stripped a student magazine’s recognition for poking fun at a transgender student representative who asked to be referred to as “zi” or “hir” rather than gendered pronouns like “he” or “her,” administrators essentially argued that that they did not want to interfere with the autonomy of the student government. While respect for the democratic process is commendable under some circumstances, one of the basics of our democracy is that there are some rights we deem too important to vote away. That is the reason why we have a Bill of Rights. The importance of the autonomy of the Eau Claire student government does not exactly match in importance the protection of free speech principles.
Some of the students seem to genuinely misunderstand the law here, and due to this misunderstanding they are violating the U.S. Constitution. As soon as administrators found out about this debate they should have informed the students that their interpretation of “viewpoint neutrality” was not just wrong but unlawful. Instead they have allowed student groups and the student government to fight it out among themselves with no apparent effort by the administration to defend the groups that were faced with these unconstitutional criteria.
Meanwhile students write editorials interpreting Southworth to mean "student fees could only be used to fund content-neutral organizations." If this is one of those "teachable moments" that educators talk so much about, it has failed. It is time the Eau Claire administration — and other universities where student harbor similar misunderstandings — do their job and teach their students what "viewpoint neutrality" really means.
Greg Lukianoff is director of legal and public advocacy for the Foundation for Individual Rights in Education.