The Univ. of Michigan has not given up. Federal District Court Judge Avern Cohn’s August 1989 ruling that Michigan’s anti-discrimination and discriminatory harassment policy (inaugurated in April 1988) was unconstitutionally vague and overbroad merely sent administrators back to their drawing boards. After implementing an interim policy last September, University President James Duderstadt assembled three committees (representing students, staff, and faculty, respectively) to advise him on the formulation of a new permanent policy—a policy that, while still not finalized at press time, promises to be little different from the old.
Indeed, by merely throwing out the unconstitutional terms of the original policy, which prohibited “stigmatizing or victimizing” individuals or groups, and replacing them with rules that (as stated in the’ interim policy) forbid “physical acts or threats or verbal slurs, invectives or epithets . . . made with the purpose of injuring the person to whom the words or actions are directed and that are not made as part of a discussion or exchange of an idea, ideology or philosophy,” the University of Michigan is demonstrating that it has missed the point. Judge Cohn’s decision may stop Michigan from banning such remarks as “Women just aren’t as good in this field as men” (an example of sanctionable conduct provided in a policy guide that Michigan has since withdrawn). But who’s to say that the university’s new policy won’t still prohibit such acts as neglecting to invite a suspected lesbian to a residence hall floor party or displaying a Confederate flag (other no-no’s according to the now-defunct guide)?
Similarly, while Michigan may now hesitate to initiate a formal hearing against someone like the School of Social Work graduate student who openly stated his belief that homosexuality was a disease (as happened in January 1989), it is unlikely that the administration will stop persecuting students like the one who read an allegedly homophobic limerick during class and was subsequently “persuaded” to attend an educational “gay rap” session (“reeducation” is a favorite sanction of policy administrators), write a letter of apology to the Michigan Daily, and apologize to his class.
Many students feel the administration is wrong to focus its attention on the guidelines. In fact, it was a Michigan psychology graduate student who (with the Michigan ACLU) filed the suit that ultimately struck down the university’s original policy. Proceeding under the pseudonym “John Doe” for fear of adverse publicity, the student claimed that the policy impermissibly chilled his right to freely and openly discuss controversial theories positing biologically-based differences between sexes and races.
Most Michigan students join Doe in harboring no illusions about the administration’s proposals. In an October 30, 1989, article in the Michigan Daily, each of ten student groups interviewed—from the College Republicans to the Lesbian and Gay Rights Organizing Committee—said the interim policy was not the answer to discrimination. Although four of the groups favor a stronger policy and more student input, both the College Republicans and the College Democrats (among others) realize that any such code is wrong. The president of the College Democrats, for example, was quoted as saying, “An anti-discrimination policy deals with the problem after it happens; if you want to handle the problem, you have to go to a deeper, tougher level.”
But the most fervent opposition to the university’s efforts has come from the student government. The Conservative Coalition Party, which controlled the Michigan Student Assembly during the 1989-1990 school year, actively opposed an anti-discrimination policy as a solution to tension on campus. As Alan Charles Kors noted in the Wall Street Journal last October, “Free Speech,” “Question authority,” and “Leave us alone” are now battlecries of the right.
The Conservative Coalition, however, lost last April’s student assembly elections to the liberal Action Party, whose stance on the issue is less clearcut. Newly-elected Michigan Student Assembly President Jennifer Van Valey (an Action member) campaigned on the following statement: “Students are adults—they can handle themselves as adults. The Code will only strengthen the oppressing arm of the administration. . . . We will never sit down and negotiate a Code with the administration. We have nothing to lose by not sitting down. If we sit down to talk, we’ll have a code in a second.” Yet this same Jennifer Van Valey was co-chair of the student advisory committee that University President Duderstadt established to review the interim guidelines, and two weeks after her campaign promise to oppose the code. Van Valey reportedly stated that “Rascist speech is not free speech. . . . [I]t’s not our purpose to come up with a policy that will get by a court . . . but to create one that stops harassment.”
The student advisory committee has since withheld its recommendations from the administration, informing the regents that it refuses to negotiate with an administration that has, in its opinion, consistently ignored student input. But Van Valey has rejected the idea of a code only insofar as it strengthens the administration at the expense of the students; she believes that a similar policy implemented and administered by students would be “ideal.”
Whether or not the student government approves, the University of Michigan’s administrators will have their anti-discrimination policy. But whether or not the policy that the university finally implements will stand up in court, the administration is indeed misguided. For Michigan’s policy (like those at the University of Pennsylvania, the University of Connecticut, and the University of Wisconsin) is more than a radical attack on free speech—it is a bad solution to the university’s troubles. Word changes and specifications cannot mend the fatal flaw in the university’s policy: regardless of its form, such a policy suppresses discussion of the underlying problem even as it smooths things over on the surface.
Michigan’s distinguished demographer Reynolds Farley illustrates this point. Farley discontinued his popular undergraduate course in “race and cultural contact” after a column in the Michigan Daily cited examples of so-called racially insensitive statements that Farley had made. Several Michigan faculty members have consequently informed Farley that they, too, are eliminating discussion of race-related issues from their courses, in the fear of being singled out by the “Speech Suppression Movement,” as Fortune‘s Daniel Seligman has termed it. The administration’s approach to problems of discriminatory harassment is suppressing the very dialogue it must promote if a “rainbow” of races, religions, and creeds are to coexist on campus with a minimum of friction.
As Judge Cohn noted in his decision, Thomas Cooley, a 19th-century justice of the Michigan Supreme Court and a professor at Michigan’s Law School, recognized early on that debate is preferable to sanctions where offensive speech is concerned. As Cooley argued in 1868, even if speech “exceed[s] all the proper bounds of moderation, the consolation must be that the evil likely to spring from the violent discussion will probably be less, and its correction by public sentiment more speedy, than if the terrors of the law were brought to bear to prevent the discussion.” Unfortunately, it does not appear that the University of Michigan has taken this advice to heart.