Today in the United States there is a growing conflict between anti-discrimination law and citizens’ civil liberties, according to David E. Bernstein, author of You Can’t Say That! The Growing Threat to Civil Liberties from Anti-discrimination Law.
At a Cato Institute forum on December 9th, Bernstein recalled a number of recent instances where anti-discrimination law has collided with civil liberties. For example, a New York City teacher successfully sued her Christian school employers for sex discrimination when her employers laid her off for becoming pregnant out of wedlock.
Bernstein, a professor at George Mason University’s School of Law, spoke on the topic of his book, with U.S. News & World Report columnist John Leo providing additional commentary.
John Leo strongly endorsed Bernstein’s book, saying, “There is a typo on page 75, but everything else I agree with.” Leo added to Bernstein’s listing of stories of conflict between anti-discrimination law and civil liberties with several of his own, focusing mostly on those involving colleges and universities. At one school, Leo noted, students are not allowed to have “a conversation that could lead to unwanted sexual attention.” At Smith College, you are not allowed to exclude people from conversation.
Bernstein asked why the First Amendment has not protected people from these laws, as they clearly limit or interfere with freedom of speech.
He noted that courts have not yet explained why the goals of anti-discrimination laws present enough of a compelling interest for the state to override the free speech protections. If the total annihilation of discrimination is held to be enough of a compelling interest for the state to deny its citizens’ right to freedom of speech, Bernstein said, the courts must explain why other interests such as public safety have not led to the diminution of civil liberties.
Recently, there has been a promising development for the preservation of freedom of speech on college campuses, Bernstein said. In August, Gerald A. Reynolds, Assistant Secretary of the Office for Civil Rights (OCR) of the U. S. Department of Education, circulated a letter to colleges and universities across the nation. Although Reynolds has since stepped down from his post, the letter explained that the OCR’s guidelines do not require universities to have speech or behavior codes in order to qualify for federal funding.
The letter stated: “OCR’s regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses. Any private post-secondary institution that chooses to limit free speech in ways that are more restrictive than at public educational institutions does so on its own accord and not based on requirements imposed by OCR.” In other words, Bernstein indicated, thanks to the letter universities can no longer claim that they are limiting campus speech because the government requires that they do so.
So far, though, Bernstein does not know whether Reynolds’ letter has had a significant impact on speech at college campuses. Leo was a bit more pessimistic than Bernstein about the future of speech codes, arguing that even when speech codes get knocked down, they most often return in the guise of behavior codes.
Leo also slightly disagreed with Bernstein as to the issues in tension. “I don’t think that it is just a matter of antidiscrimination versus free speech. It is a way for the left to hammer away at the rights of others.”
Both Bernstein and Leo said that while public universities should not be allowed to enact campus speech codes, private universities should be able to restrict speech within their institution provided that they make their codes known to prospective students. “All we need is candor,” Leo said. But universities should not represent themselves as institutions where there is complete freedom of speech, if in fact there exist restrictions on speech. Both Leo and Bernstein are angry with universities which portray themselves to prospective students as providing full freedom of speech when in fact they do not.
It is worth noting that John Leo, at one point in his remarks, said that he believes UCLA constitutional law professor Eugene Volokh, who runs a popular Internet weblog called “The Volokh Conspiracy” for which David Bernstein also writes, will one day sit on the Supreme Court.