Colleges Wrestle with How to Handle Hate Speech but Protect Free Speech
By Dani Neuharth-Keusch
Speech-related conflicts, from controversial guest speakers to racist fliers, at colleges and universities across the country have sparked protest and outrage as campuses grapple with the tension between free speech and hateful invective.
Universities often are idealized as an unfettered marketplaces of ideas, where conflicting points of view are heard without restriction and the best ideas win out. But that marketplace is often a regulated one.
In March, the University of Texas at Austin amended its campus code to take a firmer stance against hate and bias incidents, responding to student concerns.
The new policy includes stricter definitions for what kinds of speech warrants disciplinary action — “threatened or actual violent conduct, harassment and incitement to imminent violations of the law” — and imposes “greater consequences” on those who violate the policy, according to a statement from UT President Gregory Fenves.
UT’s campus code defines harassment as “hostile or offensive speech, oral, written or symbolic, that … is sufficiently severe, pervasive or persistent to create an objectively hostile environment that interferes with or diminishes the victim’s ability to participate in or benefit from the services, activities or privileges provided by the university.”
The latest high-profile incident at UT came after a student wielding a knife killed freshman Harrison Brown, 19, and injured three other students on May 1. Posters appeared on campus the next day with a racist depiction of a black man with a knife and the words “Around blacks … Never relax.”
The posters included a link to the Daily Stormer, a white supremacist site that has claimed responsibility for the fliers and reinforced their racist message in commentary on the resulting outcry.
According to a recent report from the Anti-Defamation League, since September 2016, white supremacist groups such as the Daily Stormer have posted recruitment fliers on college campuses in Texas more often than in any other state. There were 18 incidents reported in Texas as of March, and at least four of those occurred at UT Austin — the most of any campus.
Fenves said in a May 2 statement that the latest incident is being investigated by the dean of students, in accordance with the new hate and bias policy.
Students report hate or bias incidents to the Campus Climate Response Team, jointly run by Student Affairs and the Division of Diversity and Community Engagement and established in 2011.
The team gathers information, coordinates the university’s response and refers incidents that violate campus policy to the dean of students, who investigates and either dismisses the report or imposes disciplinary sanctions. Accused students can contest charges and appeal the dean’s ruling to Fenves’ office.
When the allegation is resolved, the university releases information allowable under the constraints of the federal Family Educational Rights and Privacy Act, which protects individual students’ disciplinary records.
“To the extent that they’re able, they want to communicate transparently and openly,” J.B. Bird, UT’s media relations director, said.
The policy was first put to the test on April 3, when fliers targeting Chinese students surfaced on campus. The posters were taken down within 24 hours, and the incident — and the university’s swift response — earned national coverage and even made headlines in China.
The Campus Climate Response Team received hundreds of reports, much higher than normal, which can range from zero reports up to around 25 in a “typical busy week,” Bird said.
Echo Li, a master’s student in advertising at UT Austin, said that surge of reports resulted from an organized effort.
UT officials identified a student responsible for the fliers but did not release details about the outcome of the investigation.
The hate and bias policy is just one of several codes governing expressive activity on UT’s campus. The U.S. Supreme Court has given universities latitude to regulate speech when it threatens to disrupt the educational environment. They may impose restrictions on the “time, place and manner” of student speech, so long as the restrictions are narrow, content-neutral and present sufficient alternative opportunities for speech.
The Foundation for Individual Rights in Education, which advocates for campus free expression, gives UT a red light rating, meaning it has “at least one policy that both clearly and substantially restricts freedom of speech” — in this case, policies on acceptable internet usage and sexual harassment and misconduct. UT’s speech code policy on free expression earned a green light, and the hate and bias policy is rated yellow. No Texas school in the FIRE database had an overall green light rating.
In an online statement, the American Civil Liberties Union argues that campus codes that discipline racist or bigoted speech treat a symptom — the speech — without addressing its underlying cause — the bigotry. The ACLU calls on campus administrators instead to “do the hard work” of changing campus climate. That’s what Fenves said UT is setting out to do with a new plan to increase campus-wide diversity and inclusion efforts, announced alongside the hate bias incident policy.
Universities always have walked the line between what constitutes free speech and what disrupts the academic environment through targeted harassment. Free speech advocates argue campus restrictions are unjust when they target speakers whose ideas are merely politically unpopular or offensive to some groups of students.
“We fortunately have federal laws to ensure safe learning environments and equal access for all students,” wrote Lee Rowland of the ACLU, in response to ongoing protests at Berkeley over a scheduled speech by conservative pundit Ann Coulter. “But being offended does not rise to that level.”
Texas lawmakers are attempting to write that argument into law with two bills that would limit the restrictions colleges can place on free expression.
State Rep. Briscoe Cain, R-Deer Park, introduced a bill in the House that would extend blanket First Amendment rights to campuses to ensure “the expressive rights of persons on the campuses of institutions of higher education are not unnecessarily restricted or impeded by rules or policies adopted by the institutions.” The bill was referred to the Higher Education Committee on March 29.
State Sen. Dawn Buckingham, R-Austin, is carrying the Senate version of the bill, which originally included a measure that would prohibit universities from disinviting controversial guest speakers.
Texas A&M University made headlines in December when Richard Spencer, head of white supremacist think-tank the National Policy Institute, gave a speech on campus.
Spencer is a controversial figure: He led a “Hail Trump” chant that was met with Nazi salutes at a conference in Washington in November and was famously punched in the face by an anti-Trump protester during a television interview on Inauguration Day.
Spencer’s visit, coordinated by an individual not affiliated with the university who reserved space on campus for the event, drew protests from outraged Aggies and prompted a campus policy change prohibiting outside speakers who are not sponsored by a group or individual directly affiliated with the university. UT already had a similar policy.
At Texas State, students as well as individuals not affiliated with the university are permitted to reserve space for demonstrations or simply express their opinions publicly in designated free-speech zones. Those opinions are not always popular.
In a viral Twitter video on April 3, a student tore down posters and displays exhibited by an anti-abortion demonstrator in a campus free-speech zone.
The issue evolved into a social media debate over free speech on campus: Some applauded the student or objected to the content of the demonstration. But others defended the demonstrator’s right to express opinions — however unpopular — in designated campus speech zones.
For Andrew Zimmel, a freshman from Bandera majoring in mass communications, the content of the demonstration wasn’t the issue.
“If someone wants to come in and try to explain their position, whether it be pro-life or pro-choice or pro-gun or anti-gun, I’d like to hear what they have to say, because the more educated I am on either side of an issue, the better I am about making informed political decisions,” Zimmel said.
Matt Flores, Texas State’s assistant vice president for communications, said the anti-abortion demonstrator had received permission from the university and was “adhering to those policies” and the school is investigating the incident for “criminal mischief” claims.
“We are a public university, just like any other university, that encourages people to have free speech and to express their thoughts in the way they see fit and just be respectful of each other,” Flores said.
Texas A&M also designates free speech zones, while UT explicitly extends speech rights to all areas of the campus.
Bird said part of a university’s role is to provide space for students to engage with different points of view.
“We have to adhere to the United States Constitution, so like any institution we want to obey the law,” he said. “But as an educational institution, we’re in a unique position to teach people about the law and about free speech.”