Searching for Safe Spaces

They are easy to caricature, but examining safe spaces within the broader context of the university and the First Amendment shows that, properly constructed, they can help students pursue knowledge, write Ashutosh Bhagwat and John Inazu.

March 21, 2017
 
 

In 2015, Arnold and Cassie Stigmore endowed a new campus building at Lynnfield College in honor of their daughter, Alexis. “When our Alexis felt weird after hearing someone discuss an idea that did not conform to her personally held beliefs, she had no place to turn,” said Arnold Stigmore, standing outside the $2 million space that reportedly features soothing music, neutral-colored walls, oversize floor cushions, fun board games and a variety of snacks.

“God forbid any of you, in your years at this institution, are ever confronted with an opinion you do not share. But if you are, you will have a refuge on this campus.”

The Stigmores’ story appeared on the parody humor site The Onion. In other words, it is not actually true. But amid the ongoing debates surrounding the limits of safe spaces and political correctness, it sounds nearly plausible. Consider that in November 2016, following the election of Donald Trump, the University of Michigan School of Law offered students “stress-busting self-care activities” that included coloring, blowing bubbles and sculpting with Play-Doh.

Or that the year before, student activists at the University of Missouri asked that reporters be denied access to their tent city “so the place where people live, fellowship and sleep can be protected from twisted, insincere narratives.” One Ivy League professor has suggested that students should be provided “campuswide, reflective, self-aware distance from the grit of the everyday.” Greg Lukianoff and Jonathan Haidt worry that some advocates of microaggressions and trigger warnings seek “to turn campuses into ‘safe spaces’ where young adults are shielded from words and ideas that make some uncomfortable.”

An unbounded deference to hurt feelings and sensitive emotions makes for easy caricature. More significantly, walling off certain spaces from unsettling speech cuts against the First Amendment principle that speech should be “uninhibited, robust and wide-open.” Losing sight of basic First Amendment values is no mere abstraction: a recent Pew study reports that 40 percent of millennials think government should be able to prevent speech “offensive” to minority groups.

These are real dangers. But there is also a danger of overreacting with First Amendment bluster or ridicule, as many right-leaning critics do in deriding advocates for safe spaces as “snowflakes.” Proponents of safe spaces have some important arguments behind their grievances. In fact, most people depend upon private and protected places to regroup, rest and re-energize. They form their most intimate bonds and their deepest convictions outside the public eye, with trusted friends, in spaces that might fairly be characterized as “safe.” For this reason, critics push too far when they dismiss the very notion of safe spaces.

We think the debate over safe spaces raises important questions about the nature of human interaction, the limits of free expression and the role of the First Amendment in our civic practices. The fact that these debates have emerged on college campuses is not simply a function of campus activism and progressive faculty. Rather, we think the nature of college campuses -- including the people, places and purposes that comprise them -- creates an environment that illustrates both the limits and the possibilities of safe spaces.

The Challenges of the Residential College

We begin with the seemingly uncontroversial proposition that one of the central roles of the university is to provide a forum for vigorous, open intellectual debate on all the issues of the day. In a famous case arising out of the McCarthy era, the Supreme Court recognized that within the university, “teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding.” In the 1950s, public universities sought to exclude socialist and communist ideas. Today, some of these same schools target conservative religious believers, supporters of the anti-Israel boycott, divestment and sanctions movement, and “alt-right” speakers.

The exclusion of ideas or ideologies, simply because one finds them unpleasant or dangerous, is inconsistent with the role of the university as a place of genuine inquiry and debate. Universities must be open to all ideas, including what Supreme Court Justice Oliver Wendell Holmes called “the thought that we hate.” Of course, just as speakers have a right to speak, opponents of those speakers have a right to protest against ideas or individuals they find offensive. But those protests cannot extend to violence, and they cannot physically prevent speakers from reaching their audience.

Given this commitment to robust debate and an openness to all viewpoints, is there any role for safe spaces on university campuses? Answering that question begins by recognizing that the residential campuses -- where most recent controversies have unfolded -- are also students’ homes. Undergraduates at the typical residential college spend most of their waking and sleeping hours on campus. Unlike faculty members, administrators and graduate students, most do not have off-campus homes to which they can easily retreat during the school year.

In this sense, residential colleges share similarities with other institutions that present unique First Amendment challenges like secondary schools, prisons and military bases. The nature of the institution is neither a pure public forum nor a wholly privatized space.

We suspect that even the most vigorous academic proponents of open debate would not want their living rooms to become open forums for diverse viewpoint expression. Most people need to be able to retreat and rejuvenate in their homes and other intimate social settings. In these environments, people commune with like-minded friends, engage in informal interactions and pursue mindless pastimes with no ideological content at all. (As an example of this last point, one of us recalls spending a substantial portion of his undergraduate years watching back-to-back episodes of SportsCenter in the dorms during college basketball season.) In these settings, people often do not want to have to defend their deepest beliefs, or to confront hostility. These behaviors are perfectly normal for most of us, and that includes college students.

University campuses, in short, are complex, blended spaces. In many respects, they are venues for robust, open debate, in which speech restrictions have no place. But sometimes they are also havens for their students, who are perfectly entitled to their privacy. This multifaceted role of the university sets the context for our consideration of safe spaces and related aspects of constitutional law.

The History of Safe Spaces

Malcolm Harris traces the origin of the concept of a safe space to gay and lesbian bars in 1960s Los Angeles. Citing the work of Moira Kenney, Harris observes that these bars helped patrons “find practical resistance to political and social repression.” The term “safe space” saw its first consistent usage with the women’s movement in the 1960s and 1970s, which connoted “a means rather than an end and not only a physical space but a space created by the coming together of women searching for community.” Buttressed by developments in critical theory, Harris asserts, the push for safe spaces evolved by the early 2000s into arguments for “gender-neutral bathrooms, asking people’s preferred pronouns, trigger warnings, internal education ‘anti-oppression’ trainings and creating separate auxiliary spaces for identity groups to organize their particular concerns.”

Writing in a publication called Mind Hacks, an anonymous author challenged Harris’s account and argued that the concept of safe spaces emerged not from feminist and gay liberation movements but within corporate America with the work of the psychologist Kurt Lewin. According to the Mind Hacks article, Lewin’s work on the development of corporate leadership training in the 1940s laid a foundation for what came to be known as sensitivity training: “One of the ideas behind sensitivity training was that honesty and change would only occur if people could be frank and challenge others in an environment of psychological safety. In other words, without judgment … [a] ‘safe space’ is created.”

Of course, in a broader sense, the idea of places where like-minded groups could gather, organize and seek mutual support long predates either of these histories. Black churches sustained alternative communities and social movements through much of our nation’s history, from the antebellum era to the civil rights era. The suffragist movement grew out of women who gathered not only in conventions but also around teatimes, potato sack races and pageants. Even taverns constituted a kind of safe space in the lead-up to the American revolution. The very historical ubiquity of such physical spaces suggests that they have consistently played an important role.

The Right of Association

Regardless of its origins, the notion of a safe space builds on the idea that people develop intellectually and relationally not only from exposure to conflicting ideas but also from the protection of intimate and private settings. This principle is supported not only by common sense and history, but also by an important strand of constitutional law that allows private citizens to form and participate in groups of their choosing. As the commentator Ken White has argued, “safe spaces, if designed in a principled way, are just an application of [the freedom of association].”

The Constitution does not explicitly protect a freedom of association, but the Supreme Court has long recognized the right to associate, to organize and to gather in groups with like-minded individuals as implicit in the First Amendment rights of assembly and speech.

In one of its earliest cases acknowledging the right of association, the Supreme Court noted that it is essential to the ability of individuals to develop and communicate their views. The court has also recognized that the right to choose those with whom we associate, and to exclude from a group individuals who do not share the group’s beliefs, is a central aspect of association. It was on this basis that the court upheld the right of the Boy Scouts of America to expel a gay assistant scoutmaster. The right to associate is the right to associate with individuals of one’s choice. When individuals form an association, they may exclude (and shield themselves from) opposing viewpoints. A private association is a metaphysical safe space.

The relationship between private associations and safe spaces is best illustrated in the public university context. Private universities, which are not generally subject to constitutional restrictions, can impose far greater limits on the groups and spaces within their jurisdiction. But public universities must give far greater leeway to private groups that emerge within their boundaries.

Within public universities, both private associations and safe spaces depend upon government-provided resources. Private associations like student groups will need access to meeting places and generally available forms of funding. Safe spaces usually require physical space and other means of support.

A Place to Start

The relationship between private associations and safe spaces takes on particular importance in the context of the residential college that encompasses both sites of contested inquiry “where creeds war intelligibly” and places of intimate repose.

If compromise is necessary, how should it be implemented?

There will of course be variations among campuses, both in what a “safe space” means, and in a school’s willingness or ability to commit resources to this area. Even here, however, the First Amendment provides some guidance. Most notably, the Supreme Court in 1988 upheld a law banning sidewalk picketing directed at private homes, as applied to antiabortion protesters gathering on a public sidewalk in front of the home of a physician.

This was a remarkable result because in general, the First Amendment creates a robust right to speak and protest in public places. But the court recognized that the interest in preserving “residential privacy” outweighed this general principle. This reasoning suggests that at a minimum, campuses are entirely justified in protecting intellectual and physical privacy in dormitories, which, after all, are students’ homes.

Legitimate calls for privacy and intimacy are not, however, limited to the home. As our earlier discussion of the right of association suggests, people often foster their intellectual and emotional development within groups. But groups need private places to meet and deliberate. Students who spend their lives on campus need spaces on campus, and cramped dorm rooms are hardly adequate (we also doubt that purely online groups can typically achieve the same levels of discourse and intimacy as groups that meet physically). Groups of like-minded students who wish to meet in private spaces on campus and to limit attendance to those with whom they share values and beliefs are a core example of the right of association.

Furthermore, if such a student group meets regularly or wishes to create a physical space consistent with its shared values, we see no barrier to universities facilitating such desires by dedicating space to specific groups, so long as it allocates space evenhandedly. This is one reason that the University of California Hastings College of the Law was wrong to restrict the Christian Legal Society’s access to campus facilities because the group insisted that its student members subscribe to a statement of faith (full disclosure: one of us was a faculty member at Hastings at the time of these events).

The Supreme Court upheld Hastings’s actions on the grounds that the university had no obligation to “subsidize” groups who restrict membership. That conclusion might be defensible with some forms of monetary support (like government contracts or grants), but we find it quite misguided as applied to access to campus facilities, given students’ dependence on campus spaces. Impinging on student groups’ ability to control their membership is inconsistent with the spirit of the right of association.

None of which is to say that difficult questions will never arise. The goal here is to permit the creation of intimate, safe spaces on campus, while also maintaining open discourse. Some spaces, such as dorm rooms and private meeting places, are clearly intimate. Others, such as lecture halls, are clearly forums for discourse. But what about message boards in dormitory common spaces? Here, we think some common sense is required. Students cannot insist that notices advertising speakers with whom they disagree be excluded from such boards. At the same time, they should be able to draw sensible boundaries around their immediate living spaces.

A tougher problem is posed by semi-public places like hallways outside faculty offices. This issue arose at the law school at the University of California, Berkeley, when protesters marched through the hallways demanding the firing of Professor John Yoo because of his authorship of the so-called torture memos when serving in the George W. Bush administration.

Obviously, universities may ban noisy protests that interfere with teaching. But are professors such as Yoo entitled to solitude in their offices even from nondisruptive protesters, in the same way that the Supreme Court said individuals are protected in their homes? This is an area where we think university administrators must have some latitude to make reasonable judgments. Permitting a short protest, such as a march through a corridor, seems reasonable.

On the other hand, permanent protests in front of faculty offices could easily create an intimidating environment that would interfere not only with the work of the faculty, but also with students who wished to visit their professors during office hours. Students are entitled to have private conversations with their professors, and should not be required to run a gantlet, or face attack, for doing so. Again, any policy prescription should balance the multiple roles of university campuses.

The debates over safe spaces are unlikely to end any time soon. But situating them within the broader context of the university and the First Amendment cuts through some of the partisan framing that suggests only one side or the other has any merit.

The safe space, like the university itself, is a complex idea that, properly construed, can help students engage more fully in the pursuit of knowledge across differences. Moreover, while the lessons of safe spaces begin with college campuses, they do not end there. The college campus is in some ways a microcosm of our broader society. Reflecting on the give-and-take of campus debate and its limits may give us some insights into how to pursue civic discourse in the rest of society.

Bio

Ashutosh Bhagwat is Martin Luther King Jr. Professor of Law at the University of California, Davis, School of Law. John Inazu is the Sally D. Danforth Distinguished Professor of Law at Washington University in St. Louis.

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