Michael Capel

If the 1980s were the "me" decade, then the 1990s have been the "we" decade. Political correctness, based on the notion that an individual’s identity is based upon his membership in any of numerous groups, has advanced into adulthood. Although its origins date back to the 1920s, the politically-correct ideology has now become institutionalized throughout society—in government, in the media, in the entertainment industry, and, of course, on college campuses.

However, P.C. has evolved. Virtually everyone has experienced the humorous anecdotes of political correctness run amok in their workplace or local school district. Most individuals in society with no ideological axe to grind have dismissed political correctness as perhaps well-intentioned, but frivolous, silly, and unproductive. Indeed, Alan Kors and Harvey Silverglate, the authors of The Shadow University, say that the most common reaction to their new book is incredulity. "Well, everyone thinks that P.C. is absurd," the retort goes, "but it isn’t really a big deal, and college campuses are often absurd anyway . . . It doesn’t affect anyone’s life that much, does it?"

Kors and Silverglate spend 373 pages—in what they say could well be just the first of many books detailing their findings—proving to the reader that, while P.C. remains absurd, on college campuses it is a big deal; it does affect the lives of students and faculty members and ought to be a concern for anyone who values personal liberty and individualism. Specifically, the book exposes the ideology behind political correctness, and tells how those in key positions at universities have been able to institutionalize it. The result is a perilous system of rules and regulations that stress collectivism and frequently infringe upon students’ free speech, free association, and due process rights in ways that would be unthinkable in any public setting.

Kors is a history professor at the University of Pennslyvania who has battled assaults on students’ rights his entire career. Silverglate is a liberal Boston civil liberties lawyer and former president of the Massachusetts ACLU whose first experience in this area was in defending 250 black students who took over a building at Harvard in the 1960s. Through an incisive narrative intertwined with summaries of their analysis of hundreds of universities, accounts of incidents and texts that they find representative, and anecdotes that illustrate some of the most egregious cases, the two provide a useful primer on the assault on liberty that is taking place on our college campuses.

‘The Assault on Free Speech’

Much of the rationale for the speech codes (though they are never called that, but rather are called "harassment" codes, "hate speech" regulations, or even "verbal conduct" codes) that now appear on a majority of American campuses, can be traced to the scholar Herbert Marcuse. Marcuse’s 1965 essay "Repressive Tolerance" posited that free speech was not really "free," but rather it existed only to perpetuate society’s class structure. The "pure" tolerance afforded by freedom of speech—whereby all ideas are accepted equally—serves "the cause of oppression" and the "established machinery of discrimination." Bill Lind, a scholar of political correctness, characterizes the Marcusian view, which became widely accepted by 1960s radicals, as "cultural Marxism." In the same way that Marx thought that the capitalist system was really not free, but actually contrived by societal elites in order to perpetuate the existing class structure, so too the doctrine of freedom of speech constrains the culture in such a way as to preserve the class structure.

At the heart of the Marcusian view of free speech are two misguided tenets about liberty: that it is a zero-sum game and that it is a means to an end, rather than an end in itself. Thus, Marcuse says, every bit of liberty enjoyed by the ruling class comes at the expense of the subordinate classes. Freedom of speech is a means to the elimination of class conflict, so any speech that militates against the prevailing class system should be encouraged, while the speech rights of the elite class should be restained.

Contemporary scholars who have adopted this view to varying degrees have influenced campus speech codes. Richard Delgado, a University of Colorado law professor, proposes a new civil law that allows citizens to sue for "verbal harassment." He outlined his proposal in Words that Wound, a 1993 collaboration with Mari Matsuda and Charles Lawrence. It focused on how "areas of law ostensibly designed to advance the cause of racial equality [namely, the First Amendment] often benefit powerful white men." Their dubious conclusion aside, we see the authors’ incorrect premise that the First Amendment is "designed to advance" a cause, rather than be an end in itself. Like Marcuse, the authors believe that free speech is not really free. Matsuda writes in the book that the victims of hate speech are a "class of human beings who are least equipped to respond."

Catharine MacKinnon, the University of Michigan law professor, similarly states that "The law of equality and the law of freedom of speech are on a collision course in this country," because, as Kors and Silverglate put it, the First Amendment provides "equal allocation of speech rights to people who are [supposedly] unequally situated."

The rhetoric of Delgado, Matsuda, Lawrence, MacKinnon, and others cited by the authors mirrors the language used by university administrators in crafting and defending their campus speech codes. Kors and Silverglate, who analyzed hundreds of such speech codes, note the familiar pattern of universities saying "we support the right of free expression, but. . ." Inevitably, a treatise follows on how the university strives for "equal access to educational opportunity" and "prevention of a hostile learning environment" for "historically disadvantaged or oppressed groups." These "buts" become the justification for campus speech codes.

Georgetown’s speech code, which is typical, says that "expression grossly offensive on matters such as race, ethnicity, religion, gender, or sexual preference is inappropriate in a university community," and hence banned. The speech code at the Massachusetts Institute of Technology says, "Freedom of expression is essential to the mission of a university. So is freedom from disruptive and unreasonable offense."

‘The Assault on the Individual’

The ideology underlying the creation of the speech codes ultimately manifests itself in their application. True to their Marcusian underpinnings—administrators sometimes but not always admit this—speech codes are always applied inconsistently (essentially by definition). Most are facially neutral (if not content neutral), but instances of members of ethnic minority groups, homosexuals, or liberals being convicted are rare.

For example, the University of Massachusetts associate chancellor says that it is appropriate for a speech code to apply to insults of homosexuals but not to insults of heterosexuals because the former are more "vulnerable."

At Stanford University, the speech code says that perpetrators of "hate speech" don’t speak as individuals, but rather as members of the dominant group, with "a widely shared, deeply felt, and historically rooted social prejudice," so that their speech, given unfettered freedom, constitutes a caricature of societal oppression. "American society and its history have created [an] asymmetry," according to Stanford Professor Thomas Grey, the drafter of the code. Consequently, blacks are less able to "take care of themselves in verbal rough-and-tumble."

Speech codes, however, aren’t the only way that university administrations impose "groupthink" on their students. The practice of sorting students into groups begins, the authors note, before students even get to campus. Many universities have separate orientations for minorities and some even for homosexuals. At these orientations, university administrators remind students of their group identity and how they have been persecuted because of it, and introduce them to their campus group spokespeople. Throughout their four years on campus minority students are the beneficiaries of countless special scholarships and programs and minority-only lounges, receptions, and other gifts. Universities employ special deans and advisors for minority and homosexual students, and there are "diversity" committees, task forces, and working groups at almost all campuses.

‘The Assault on Due Process’

The authors see the negligence of due process as one of the most pervasive and insidious trends at the "shadow university." For when students violate these speech codes, universities subject them to "trials" and "sentences." It turns out that due process interferes with the universities’ prescribed social justice goals in the same way that truly unfettered freedom of speech does. Kors and Silverglate note, based on their exhaustive analysis of the judicial proceedings at campuses across America—which frequently take the form of tribunals made up of faculty, staff, administrators, and/or students—that the following chracteristics are the norm:

· Defendants often have no right to counsel. When they do, tribunals place substantial restrictions on who may serve as counsel, for example by barring lawyers or non-members of the university "community." The involvement of counsel is also limited, such as by allowing prior consultation but not attendance at the actual "trial."

· There is no guarantee of fair and impartial judges, i.e., by making no allowance for defendants to challenge members of the tribunal. Quite often, the accuser, the fact-finder, and the judge are the same person.

· Defendants’ rights to cross-examine witnesses, present defense witnesses, or face accusers are limited or nonexistent.

·Charges, fact-finding processes, and burdens of proof are ill-defined, unfair, or not even specified.

· Hearings are closed to the public, and settlements are confidential.

Of course, the degree of unfairness varies by school, but Kors and Silverglate note that no college that they examined has processes that even "remotely approach" the due-process protections that would be guaranteed in a real court.

At Bowdoin College, for example, harassment is defined as conduct "experienced by others as harassing." At New York University, "sexual harassment is not defined by intentions, but by impact on the subject." NYU Professor Herb London notes that not only does this ignore the need for an objective rule of law, but actually entails a presumption of guilt, because "the accused is guilty if the accuser believes him to be guilty."

How and Why

For every brave student or faculty member who takes his case of repression at the hands of a university administration public—via the media or the courts—there are many more who do not. Often, a lack of knowledge about what to do, fear of reprisal at the hands of the university, constraints on time and financial resources, or a desire to simply "move on" and get past the unpleasantry prevents students from coming forward.

Even worse, the authors observe, is the chilling effects that these speech codes have on student bodies. Some are explicit in calling for self-censorship. M.I.T.’s code says, "Members of this educational community are discouraged from putting these essential elements of our university [‘freedom of expression’ and ‘freedom from unreasonable and disruptive offense’] to a balancing test. … It is usually easier to deal with issues of free expression and harassment when members of the community think in terms of interests rather than rights." Emory University Counsel Joseph Crooks asks, "Do we want technical legal rules to preempt community judgments?"

To be sure, such exhortations create the desired effect on many campuses, and students censor themselves. This silence of the majority of students allows the vocal minority to continue to hold the campus hostage.

Kors and Silverglate argue that it is not the case that administrators are ideological zealots. They probably do espouse some traces of the paternalism of the Marcusian view, but more than anything they are career-minded bureaucrats who see it as their primary function to keep the peace and preserve the status quo on campus. Thus, when radical leftist students and faculty (conservatives tend not to take over buildings or cause other disruptions on campus) demand a new "racial harassment" or "verbal conduct" code preventing "offense" to minorities or homosexuals, administrators invariably cave in.

Compounding the problem is that campuses are insulated from alumni and the rest of society. The book spends a lot of time illustrating how "sunlight"—media exposure—has solved many problems of oppressive university judicial systems. However, absent external pressure, the administration’s quarterly newsletters to alumni, which do not talk about campus disruptions or new speech codes, are left as the only conduit of information out of the Ivory Tower. The result is the "shadow university," where liberty is replaced by "a tyranny that seeks to assert absolute control over the souls, the consciences, and the individuality of our students—in short, a tyranny over the essence of liberty itself."