Eric Langborgh

In a triumphant shout of, "It’s a great day for freedom!" University of Wisconsin-Madison faculty senator Lester Hunt and other defenders of freedom trumpeted the Faculty Senate’s decision to essentially abolish the university’s long-standing faculty speech code. This voluntary action comes six years after the Wisconsin Supreme Court deemed student speech codes unconstitutional.

After 17 months of studying and debating speech code options, the Faculty Senate voted 71-62 to approve legislation to allow "all members of the university to express openly their ideas and opinions."

Jason Shepard, student committee member and a supporter of abolishing the speech code, called the legislation "historic" and stated that "this is the first time a university has voluntarily repealed its speech code."

The faculty speech code had been in effect since 1989, when then-Chancellor Donna Shalala instituted new rules under a section titled "Unprotected expressive behavior subject to discipline."

Wisconsin’s faculty speech code, like many at other universities, had sought to control "offensive speech" through diversity codes under what has come to be called "hostile environment doctrine." Recently, Pennsylvania State University became the latest in a long line of colleges around the country to come under fire for suppressing free speech under this rule. Hostile environment doctrine was also the subject of Alan Charles Kors and Harvey A. Silverglate’s book The Shadow University: The Betrayal of Liberty on America’s Campuses.

Jonathan Rauch, author of Kindly Inquisitors: The New Attacks on Free Thought and senior writer for National Journal magazine, says that under this doctrine anyone who feels they are in a hostile environment can file suit against the individual or group creating that environment.

This notion came to a head earlier this year when a University of Wisconsin (UW) student accused one of her professors of contributing to a hostile environment by repeatedly offending her. In a case eerily similar to the recent incident in the Washington, DC mayor’s office, Amelia Rideau, a junior, left the class in tears after her professor repeatedly used the word "niggardly."

According to the American Heritage College Dictionary, the word "niggardly" is an adjective used to describe a meager, petty manner. However, Rideau felt that by using this word her English professor, Standish Henning, was singling her out as the only black in the class. "This is a professor who knew that word offended me, and…still repeated it," she said.

Henning decided to use the incident to spur a valuable discussion in his class about the implications of language.

Shepard characterized the incident by saying, "the word ‘niggardly’ does not debase the student on the basis of race. I don’t think it is punishable…even if it is annoying."

Indeed, in a speech he gave at UW, Rauch agreed. "In a free society all of us have an obligation to be thick-skinned," he explained. "We have a First Amendment not because we like offensive speech, but because we disagree on what’s offensive."

Rauch applauded the effort to abolish the speech code at UW. "The battle you are fighting is part of a much larger war," he proclaimed. "The statement you make will be heard around the country. It will revolutionize free speech practice."

Still, debate remains over whether this legislation truly eliminates the speech code. The last hours of the Faculty Senate debate focused on one paragraph of a University Committee proposal. This paragraph stated that all germane faculty speech is protected, as long as it does not fail two tests. For a faculty member to be disciplined, the speech would have to violate state or federal statutes and traditional notions of academic freedom.

After many proposed revisions, the final amendment eliminated these two tests of faculty speech.

This paragraph now reads, "Accordingly, all expression germane to the instructional setting—including but not limited to information, the presentation or advocacy of ideas, assignment of course materials and teaching techniques—is protected from disciplinary action."

Although Robert Drechsel, abolition supporter and speech code committee chair, says that this clause "for all practical purposes…is abolition," others see it differently.

"There is quite literally still a test if it is germane or not," attested History Professor Charles Cohen, a majority code supporter. "It all depends on how one takes ‘germane.’"

Added Physics Professor Marshall Onellion, who proposed the final amendment, "The fact of the matter is that there are all sorts of ways that a faculty member can be pressured to stop being a jerk."

Faculty Senate University Committee member Bernice Durand, herself a supporter of a faculty speech code, added that she thought that the code will not be the end of speech violation protections for students. "What’s still in there clearly states what is harmful and not appropriate."

Despite these objections, those who worked for abolition of the faculty speech code remained enthusiastic, though they agreed that "eternal vigilance" is needed to keep the speech code from coming back into existence.

Shepard remained "ecstatic," and called the abolition "truly a huge victory for the First Amendment."

"The intent of the faculty was clear," declared Shepard. "They wanted abolition and that’s what they got."

Student body dissension was rare, but where it was present it was strong. "I’m disgusted because some of the so-called brightest individuals, who are supposed to teach the future of this country, did not seem to possess the ability to look at this issue from anyone’s shoes but their own," lamented Tshaka Barrows, president of the Black Student Union.

He added, "I must question the faculty/administration's ability to maintain an equal learning environment on this campus."

Despite Barrow’s and other’s objections, the Faculty Senate’s decision to abolish the faculty speech code is exactly the learning environment intended by the founders of the university as articulated in a statement from the UW Board of Regents in 1894:

"Whatever may be the limitations which trammel inquiry elsewhere, we believe that the great state University of Wisconsin should ever encourage that continual and fearless sifting and winnowing by which alone the truth can be found."