Bill of Rights 101

Mandated groupthink, speech codes, and secret disciplinary tribunals are threatening America's colleges

Interview by Gareth Cook

The worst aspects of the turbulent 1960s thrive on our nation's campuses, while the best aspects have been abandoned. That is the thesis of The Shadow University: The Betrayal of Liberty on America's Campuses (Free Press), a new book by attorney and Phoenix legal columnist Harvey Silverglate and Alan Charles Kors, a history professor at the University of Pennsylvania. They paint a portrait of campus life where "free speech, equality of rights, [and] respect for private conscience" are all in trouble. In place of those principles, Silverglate and Kors argue, is a new orthodoxy in which "self-appointed `progressives' " have taken it upon themselves to "set everyone else's moral agenda." This is not "political correctness," the two argue. It is a fundamental and disturbing change in the administration of our institutions of higher learning.

Silverglate spoke recently with the Phoenix. An edited transcript of that conversation follows.

Q: Why are you writing this book now, when the debate over "political correctness" has mostly left the public consciousness?

A: The debate on political correctness came and went quickly because it dealt with the issue on a very superficial level. What was never recognized was that this was a symptom -- just a symptom -- of the deeply embedded culture that has taken over the whole area of student life on the vast majority of campuses.

A combination of political ideologues and spineless, gutless careerist administrators have adopted a view of rights that began with Herbert Marcuse, the radical Brandeis University philosopher of the 1960s.

Marcuse's argument was deceptively simple. He believed that we all have free-speech rights, but in order for a member of a historically disadvantaged group to have true freedom, the freedom of the group in power has to be limited.

On campuses, this translates into the notion that in order for a member of a disadvantaged group to feel comfortable, to take advantage of all that a college has to offer, that person has to be protected from being overridden, taken advantage of, by the powerful majoritarian culture. Therefore, certain limitations have to be placed on the powerful, historically advantaged majority.

This is the basis for speech codes. This is the philosophy that reigns on the vast majority of campuses, and I'm talking vast majority -- at last count at least 80 percent of campuses in this country had speech codes. There are no schools around here, and there are very few in the country, that have escaped this plague. If you look at the index, you'll see that we talk about Tufts, Harvard, MIT.

But the problem is much deeper than speech codes. Part of this whole philosophy requires that students be assigned group identities. When you arrive as a freshman on campus, you're pigeonholed. And at a lot of universities, if you're black, you're invited to come a few days early for a special black orientation.

Think about it. Even though there is this great commonality that students have as human beings -- and it's an opportunity to develop community around that if nothing else -- they're broken up by the ideologues into ethnic groups, into racial groups.

I want to make it clear that Alan Kors and I have no problem with people choosing, voluntarily, a group to belong to. If you're a Jewish student and you feel more comfortable with Jews, you can join Hillel. If you're a black student and you feel more comfortable with blacks, you can join the Black Students' Union. You want to live with five black roommates -- or five Asian roommates, if you're Asian -- you can do that.

But somebody who's black may very well feel that his or her primary identity is not blackness, but the fact that he's a Catholic or a Baptist or a Republican or gay.

To pigeonhole people, to assign them group identities for the purpose of assigning them rights, is an atrocious way to educate students in a country that believes in an ideal goal of equality before the law, equality of rights.

Students who dare to make statements that contradict the orthodoxy can easily find themselves in front of a disciplinary tribunal -- and those tribunals are not, by any stretch of the imagination, fair, rational bodies. They operate by rules where, if you are charged, you are virtually assured of being convicted. On many campuses, you are not allowed to present witnesses in your defense. On some campuses, you are not even allowed to listen to the testimony of the person who is charging you. You are not allowed to publicize the kangaroo court that's judging you, because of the so-called confidentiality rules. You are completely at the mercy of these ideologues, these midlevel administrators, who have the power to throw you out of school and really ruin your educational career -- and that means, in many ways, threatening your future work life.

What the universities are doing is indoctrination, teaching that the rights you have depend on the group to which you have been assigned. And that is what this book is about -- the double standards that are applied based upon assigned group identities.

Q: But the universities argue that they are just trying to make all their students feel welcome, that they are trying to create a safe and healthy learning environment. What is wrong with that?

A: What is wrong with it is this: The real question you face is, whose definition of "safe and healthy environment" are we going to choose? If we are going to allow someone to dictate people's attitudes, people's philosophies, how people speak to each other, who's going to be the dictator?

There have been cases involving fundamentalist Christians who truly and deeply believe that if you engage in gay sex, you go to hell. To say to a gay male that if you have sex with a man, you are going to rot in hell is viewed on an overwhelming number of campuses not as a protected expression of your beliefs, but as harassment of gays. And you can be disciplined for that.

Now, Kors and I believe that students have an absolute right to engage in gay sex, if that's what they want -- we're libertarians. But surely the dorm counselor has the right to engage the gay student in a conversation in which the dorm counselor says, "You know, I don't approve of the way you live." Because, after all, the gay student has the same right to say to the dorm counselor, "Guess what, Henry? We don't approve of the way you live. There is no God."

The Bill of Rights is really no great mystery, however much it has been complicated by judges and lawyers over the years. It comes down to the biblical injunction: Do unto others as you would have them do unto you.

I had a very interesting experience a few years ago when I gave a talk at Harvard Law School about speech codes. One of the white students said, "I don't see why you should be opposed to a rule that makes it possible for blacks to be on this campus."

All of a sudden a black student in the law school jumps up and says: "I've had it. I have to say something. The whole notion that if somebody calls me a nigger it's going to cause me to pack up my suitcase and go home is so insulting that I can barely even talk about it. I have a right to be here. I worked hard to get here. I have two jobs to help me pay the tuition for this place. If you think that just because you don't like me and you say so, I am going to get up and leave -- you've got another guess coming. It's an insult to me for you to say that I need a speech code to protect me from being driven off the campus."

I believe that psychologically it's very harmful to women, blacks, gays, and so forth to be told that the only way they are going to survive and get an education is if other students are not allowed to express their views about them. It's very demeaning and very destructive. It's a terribly patronizing view of the so-called victim -- that suddenly you're called a name and you fold up your tent and go back to the ghetto.

Q: But free speech can be demeaning and destructive, too -- it can hurt. Aren't there costs to free speech?

A: If speech didn't matter, we wouldn't have so many fights over it. To be perfectly blunt, if speech didn't matter, the First Amendment would be unnecessary. Why protect something that doesn't matter?

When Hitler gave those rousing speeches in the amphitheaters of Berlin, he moved an awful lot of people. Words move. To use the language used by the ideologues, words wound. I don't deny that for one second. That's one of the things that makes speech valuable. Because, of course, good speech also moves. Good speech inspires great things. A political leader of great quality can use words to great advantage. Franklin Roosevelt used words in order to uplift a nation's spirits during the Depression. Winston Churchill used words in a powerful and wonderful way to give Britons the courage and the wherewithal to resist the Nazis during the lowest period of World War II. Words can wound, but words can also inspire and save.

You have to have a very dim view of human nature, and you have to have really no confidence in people -- no confidence in our social institutions in this country -- to take the view that speech is too dangerous to allow it to be unfettered and free.

I'm more optimistic than that. I believe that, in the end, good speech will win out over bad speech.

Q: What is to be done?

A: That is the hardest question we faced in doing this book. Initially we had a very long chapter on legal remedies, how you can go to court in order to challenge the deprivation of rights on campus. And then we realized that, in fact, going to court is not the most functional way of dealing with this problem.

We came to the conclusion that, to the extent that the veil can be pulled off and this authoritarian regime can be exposed, it will dissolve under its own weight. Why will exposure make it dissolve? Because these ideologues cannot justify what they are doing if they are asked directly why they are doing it. That takes off on Justice Brandeis's famous statement that sunlight is the best disinfectant.

If a student is going before a kangaroo court, insist that it be opened up to the public. If necessary, violate the secrecy rules; dare them to shut you up. Dare them to try to punish you in secret. Write about it, talk about it, join with other students and protest what's going on. Alumni should know about it, the people who contribute money to colleges should know about it, faculty who are naive about these things should know about it. These things should be subject to debates at faculty meetings, just like issues of academic integrity and curricular integrity are subject to debates. The issues of student life and student discipline and student regimentation should all be subject to debate out in the open. Newspapers should get more interested in covering these issues in their local colleges and universities.

This book is the opening salvo in what Alan Kors and I consider to be a war against the campus totalitarians. We believe that this book tears away the veil of what's going on, and that the American public will not tolerate it. They will not send their children to schools that practice hypocrisy like this. Alumni will not give money to support these regimes.

This is not a book, it is a crusade. I will tell you frankly, it is a crusade.

Harvey Silverglate and Alan Charles Kors discuss The Shadow University at 6 p.m. on Tuesday, October 13, at the Boston Public Library in Copley Square. Call (617) 661-1515 for information.