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Campus speech and the First Amendment

The university in this country historically has been the locus of vigorous debate and free inquiry, one of the few places where people with unpopular ideas were welcomed and encouraged. Now, much to the dismay of civil libertarians and many academicians, that may be changing as a growing number of universities move to limit free speech in the name of protecting blacks, homosexuals, women and other groups from insensitive and defamatory language.

The trend toward a form of censorship on campus poses complex moral and legal questions that deserve more public debate than they have been getting. Even some of the staunchest defenders of free speech, including some officials of the American Civil Liberties Union (ACLU), acknowledge being ambivalent about whether the First Amendment should be trimmed to protect minorities and other groups from slurs and insults.

Campus authorities say they are reacting to an alarming rise in racial slurs, anti-Semitic comments and anti-gay incidents. On some campuses, law professors construct legal arguments to justify limits on speech. Some argue that the First Amendment does not apply to what they call "hate speech."

Few would deny that the problem is real or that a university has a responsibility to set standards of conduct that promote civility and a respect for others. It's the solution that campus authorities have chosen that troubles many who believe the bedrock principle of free speech is too precious to be compromised in the name of student discipline.

In addressing a legitimate concern, are universities heading down a path where they will be closing minds instead of opening them? Will heightened sensitivity and the anti-harassment rules on campus have a chilling effect on what is said and taught in the classroom?

How can a law school professor argue that the First Amendment protects a political protester's right to burn the American flag but not the right of a college student to wear a T-shirt with a message that might offend some women?

At Tufts University in Massachusetts, a male student designed a T-shirt that listed 15 reasons why "Beer is better than women at Tufts." The administration was not amused. It suspended the student after deciding that the T-shirt constituted "harassment" of women.

Unfortunately, the problem on American campuses is more serious than the T-shirt incident suggests. At Stanford, two drunk students placed a black-faced caricature of Beethoven outside a dormitory occupied primarily by black students. At the University of Michigan two years ago, the campus radio station broadcast racist jokes and anti-Semitic comments that provoked a storm of outrage.

The Michigan faculty reacted by adopting an "anti-bias code" that punishes "any behavior, verbal or physical, that stigmatizes or victimizes an individual on the basis of race, ethnicity, religion, sex, sexual orientation, creed, national origin, ancestry, age, marital status, handicap, or Vietnam-era veteran status."

A federal judge found the Michigan "anti-bias code" unconstitutional and threw it out. The policy was challenged in a suit filed by the Michigan affiliate of the ACLU, which was careful to focus its arguments solely on limits on verbal expression.

The court's ruling does not affect parts of the policy that prohibit physical harassment. Nor does it prevent the university from developing other ways of dealing with bigotry.

American liberals, who hailed the Supreme Court's flag-burning decision, for the most part have been conspicuously silent on the issue of how far campuses should go to suppress offensive speech. The most vocal opposition has come from civil libertarians and political conservatives.

The strongest conservative blast on this issue was fired by Chester E. Finn Jr., a former assistant secretary of education in the Reagan administration and now a professor of education and public policy at Vanderbilt University.

In an article in Commentary magazine last year, Finn wrote that "American colleges and universities are now muzzling themselves."

Finn argued that charges of racial and sexual harassment are so loosely made and accepted that scholars are feeling intimidated. One of several examples he cited involved a charge of sexism leveled against Ian Macneil, a Harvard Law School professor, by the leader of a campus women's group. One of the many offenses she listed was the professor's use of a quote from Byron: "And whispering, "I will ne'er consent' _ consented."

At the University of Michigan, Professor Reynolds Farley, regarded as the nation's leading demographer, abandoned a course in "race and cultural contact" he had taught for 10 years after a column in the campus newspaper accused him of racial insensitivity.

Most American colleges and universities dealt with the student protests _ some of them violent _ of the Vietnam era without tearing up the First Amendment. The bigotry of a handful of students shouldn't be an excuse for doing it now.

Phil Gailey is chief of the Washington bureau of the St. Petersburg Times.

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