Code revision properly draws the line
Charles Cohen and Ted Finman
The legislation proposed by the majority of the Ad Hoc Committee on Prohibited Harassment Legislation is designed to protect the free flow of ideas among every person in a classroom.
 Charles Cohen
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Its language is absolutely clear: “All expression germane to the subject matter of a course, including the presentation or advocacy of ideas and the assignment of course materials, is protected and not subject to discipline, however controversial or repugnant such expression may be.” Thus the committee proposal in no way restricts students’ exposure to the widest conceivable range of subject matter and opinion.
Only two categories of expression can be a basis for discipline: (1) epithets or comments directed at a specific student that derogate and debase that student on the basis of his/her gender, race, religion, ethnicity, sexual orientation, or physical disability; (2) epithets not directed at a specific student and also teaching techniques that degrade and debase students in the class on the basis of their gender, race, etc. The committee and minority proposals differ significantly in their treatment of this kind of expression, which has nothing to do with an instructor’s freedom to advocate ideas but can silence students.
An instructor who presents-and defends-research asserting that men are smarter than women engages in protected expression. Suppose, however, that a female student questions the data and the instructor replies, “I would expect a stupid woman like you to argue that.” Under the committee legislation, this personal insult to the student’s gender could be a basis for discipline if the following conditions are satisfied: the instructor has no reasonable pedagogical justification for using the expression; the instructor has repeated it despite requests from one or more students to stop; the expression is and is commonly considered by the university community to be debasing; and it is likely seriously to detract from a student’s capacity to act as an equal member of the class.
Even if all these conditions were met, however, the minority would not allow discipline unless, in addition, the instructor could be shown to have actually intended to harm the student, i.e., to derogate and debase her on the basis of her gender. In the majority’s view, requiring intent would subvert the purpose of these rules, for if an instructor repeatedly addresses a student with comments that debase him/her on the basis of gender, race, etc., it hardly matters whether the instructor intended the harm or acted with reckless disregard for the consequences of his/her conduct. Whatever the case, the harm is done and the student deprived of the very protection these rules are supposed to provide.
The minority argues that an intent requirement is necessary to protect instructors who act inadvertently. But since discipline is not possible unless the expression is repeated after its debasing nature has been pointed out to the instructor and he was asked not to repeat it, there can hardly be any question of inadvertence. Moreover, the committee proposal protects an instructor doubtful about whether expression is debasing by allowing him/her to obtain an opinion on this matter from the Committee on Faculty Rights and Responsibilities, which hears disciplinary cases.
The minority further argue that discipline in the absence of intent to harm would be unfair. Intent is not the only state of mind that makes an individual culpable and justifies punishment, however. Reckless disregard for the welfare of others is more than sufficient. In the majority’s view, an instructor who has been asked not to repeat an egregious personal insult but nonetheless insists on doing so disregards a student’s welfare and therefore should be considered culpable.
The minority proposal imposes no limit whatsoever on epithets concerning a group, and teaching techniques. Thus, it would not discipline an instructor in anatomy who repeatedly uses a Playboy centerfold for the ostensible purpose of illustrating body parts. Similarly, it leaves an instructor completely free to repeatedly use epithets in referring to a gender, race, religion, etc. Under the committee proposal, such expression can be a basis for discipline if the instructor has no reasonable pedagogical justification for its use. This position, we believe, properly draws the line between protecting expression that can be justified as an aspect of academic freedom and expression that serves only to silence students.
Cohen is a professor of history and director of the religious studies program; Finman is an emeritus professor of law.