Speech Code - Speech Codes in U.S. Universities

Speech Codes in U.S. Universities

In the United States, the Supreme Court has not issued a direct ruling on whether speech codes at public universities are unconstitutional. However, the United States District Court for the Eastern District of Michigan has struck down a speech code at the University of Michigan, indicating that broad speech codes seeking to prohibit hate speech probably violate the First Amendment (Doe v. University of Michigan, 1989). Subsequent challenges against such language supposedly couched in harassment policies, diversity mandates, and so forth instead of being self-identified as speech codes have generally succeeded to date.

One web site describes behavior that speech codes are meant to prevent:

Discriminatory harassment includes conduct (oral, written, graphic or physical) directed against any person or, group of persons because of their race, color, national origin, religion, sex, sexual orientation, age, disability, or veteran's status and that has the purpose or reasonably foreseeable effect of creating an offensive, demeaning, intimidating, or hostile environment for that person or group of persons.

Today, most talk of speech codes is within institutional contexts and refer to colleges and refers to official lists and rules established by authorities, where speech codes are occasionally used by colleges and universities as a bludgeon to suppress speech that others find offensive. Alan Charles Kors and Harvey Silverglate, in their work, The Shadow University, published in 1998, refer to a number of cases in which speech codes have been used by public and private universities to suppress academic freedom, as well as the freedom of speech, and deny due process of law (for public institutions), or violate explicit and implicit guarantees of fairness declared or implied in a student's contract of enrollment or a faculty member's contract of employment with the institution of higher education in question (at private institutions).

One particular case, the University of Pennsylvania “Water Buffalo” case, highlighted reasons for and against speech codes and is typical of such cases. In the University of Pennsylvania case, a freshman faced expulsion when he called African American sorority members who were making substantial amounts of noise and disturbing his sleep during the middle of the night, “water buffalo” (the charged student claimed not to intend discrimination, as the individual in question spoke the modern Hebrew language, and the term "water buffalo", or "behema", in modern Hebrew, is slang for a rude or an insulting person; moreover, water buffalo are native to Asia rather than Africa). Some saw the statement as racist while others simply saw it as a general insult. Questions were raised about how far was too far when interpreting and punishing statements like the one in question. The college eventually dropped the charges amid national criticism (Downs, 1993), (Kors & Silverglate, 1998).