Why are people so confused about the right of both public and private universities to select their student body and establish a code of student conduct?
Public universities, as universities that are funded by and answerable to the taxpayers of the U.S. states in which they reside, have to play by somewhat different rules than private universities. For example, they can’t discriminate on the basis of religion when it comes to student admission or faculty employment, but private sectarian colleges and universities may discriminate. Also, I’m pretty sure that the god-bags and the crazies that scream at passing students and faculty on the main plaza at Baa Ram U. are there because our campus is a public square, whereas a private university is probably permitted to escort protesters to the borders of campus.
In short, there is as yet no constitutional right to a university education at a particular institution, so public unis–like private schools–are perfectly within their rights to establish codes of conduct for students and faculty alike. Indeed many would argue that they’re under an obligation to establish and uphold rules for conduct so as to better ensure safe and equitable access to and experience of classroom and campus life. (Does anyone else remember Gina Grant, the Harvard admit whose offer was rescinded 20 years ago because it discovered that she killed her mother? Now, maybe her mother needed killing, but that doesn’t mean that Harvard or any other university, public or private, doesn’t have discretion over the students they admit, or over their on- and off-campus conduct.)
Jonathan Zimmerman apparently disagrees, as he argues today at Inside Higher Ed, citing the recent expulsions from the University of Oklahoma and the University of South Carolina for the use of a highly offensive ethnic slur. Zimmerman, a historian and education proffie at New York University, thinks that universities can’t expel students for speech acts:
Last week, the University of South Carolina suspended a student for writing the n-word on a whiteboard in a campus study room. The university president explained that the student had violated the Carolinian Creed, which bars “racist and uncivil rhetoric.”
But in the United States, there’s another creed that’s supposed to take precedence over all the others: the Constitution. And the university — not the offending student — violated it.
So did the University of Oklahoma, when it expelled two students last month for leading a racist chant on a fraternity bus trip. The chant referred to the lynching of African-Americans, one of the ugliest chapters in our nation’s history, and the students deserved all of the condemnation they received.
But our university leaders deserve censure, too, for their craven disregard of the First Amendment. Everyone has the right to speak their mind, no matter how much it offends yours. When Americans work themselves into a fine moral lather, however, freedom of speech is always the first thing to go.
Zimmerman cites a few cases of “speech codes” which were struck down by some courts 20-25 years ago, but he completely misses the fact that the vast majority of universities include spoken words as grounds for suspension or expulsion.
Eager to stand up for the alleged right of undergraduates to boast that “there will never be a Ni–er SAE!” without consequence, Zimmerman overlooks the fact that the University of Oklahoma’s Student Rights and Responsibilities Code 2014-15 specifically states that “enrollment in the University creates special obligations beyond those attendant upon membership in general society,” and its first rule of conduct is “abusive conduct,” defined first as “unwelcome conduct that is sufficiently severe and pervasive that it alters the conditions of education or employment and creates an environment that a reasonable person would find intimidating, harassing or humiliating.” That would appear to cover any non-classroom, non-faculty supervised utterance of any and all ethnic slurs. And no, being expelled from a state-supported university is not the equivalent to criminal prosecution or government persecution.
If there were any First Amendment case to be made by the Oklahoma students, both of whom have apologized and slunk away, it would probably have been made already.
Take a look at your university code, and tell me what yours says about student speech acts. My university specifically prohibits “Abusive conduct, including physical abuse, verbal abuse, threats, intimidation, bullying, stalking, coercion, and/or other conduct which threatens or endangers the physical or psychological health, safety, or welfare of one’s self, another individual or a group of individuals.” It shouldn’t take a constitutional scholar to figure out the difference between discussing the history and current use of an ethnic slur, and the same ethnic slur being used to threaten or intimidate others. Most of us can walk and chew gum at the same time.
So stop pi$$ing on our universities and telling us it’s raining.
Universities must uphold both academic freedom and liberty of speech, but there is no such thing as free speech without consequence. The expelled students from USC and Oklahoma should be glad they’re learning this lesson young, before their “free speech” costs them a job, or their safety, or physical or mental health.
Do let me know what your student codes of conduct say in the comments below. I am sure that Baa Ram U. and Oklahoma are not the only unis who specifically prohibit certain student speech acts. Let’s hear it!