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Jewish World Review March 2, 2001 / 7 Adar, 5761

Jeff Jacoby

Jeff Jacoby
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Consumer Reports

A Harvard candidate's
silence on free speech -- WHEN Lee Bollinger, the former dean of the University of Michigan Law School, was named president of the university in November 1996, some free-speech advocates were dismayed.

Ilona Cohen, the head of UM's American Civil Liberties Union chapter, told the campus daily that she had hoped the board of regents would choose a president "more responsible in terms of his constitutional obligations." It would be "naive for us to assume he'll protect our First Amendment rights now," she said, "when he failed to do just that as dean of the Law School."

Bill Dobbs, a law school alumnus, was also uneasy. "He is no friend of free expression," Dobbs told the paper.

All college presidents, of course (and many law school deans) manage to antagonize students. Bollinger isn't the first administrator to be accused by campus activists of insensitivity to free speech. But in his case, the charge may deserve a closer look.

Bollinger is in the running to become the next president of Harvard, a formidable post in higher education. If he lands the job, his views on freedom of speech -- and the power of universities to restrict it -- will have an influence throughout academia, particularly since Bollinger is a First Amendment expert in his own right. There are few venues in American society where unfettered inquiry and dialogue are more in need of a champion than the nation's universities. But it is not clear that Bollinger would be that champion.

On scores of US campuses, as historian Alan Kors and civil libertarian Harvey Silverglate showed in their highly praised 1998 book, The Shadow University (HARDCOVER) (PAPERBACK), freewheeling debate "has been replaced by censorship, indoctrination, intimidation, official group identity, and group[DI]think." Many schools have imposed speech codes aimed at preventing students or faculty from saying anything "offensive" or "intolerant." These codes often begin with a bow to free speech, note Kors and Silverglate, but then move on to the "wholesale banning, not only of speech and other traditional modes of expression, but even of looks, body language, and ... laughter.... The whole notion of individual liberty becomes subordinated to redressing historical wrongs against groups."

One of the most notorious of these speech codes was adopted by the University of Michigan in 1988. Bollinger was dean of the law school at the time, and his role in the affair has been questioned ever since.

Harvard Yard, where freedom rings --- for some
The code was a First Amendment nightmare. It defined as punishable -- by sanctions ranging from a reprimand to outright expulsion -- any behavior or speech "that stigmatizes or victimizes an individual" on the basis of race, religion, sex, sexual orientation, or other listed characteristics. In a guide known as the "yellow booklet," the university gave examples of forbidden expression. One was: "A male student makes remarks in class like 'Women just aren't as good in this field as men,' thus creating a hostile learning atmosphere for female classmates." Another section, "You are a harasser when," offered more examples, including "You tell jokes about gay men and lesbians" and "You display a Confederate flag on the door of your room in the residence hall."

Fifteen months after it was adopted, the UM code was struck down as flatly unconstitutional by US District Judge Avern Cohn. But during those 15 months, it was enforced with vigor.

A student in the School of Social Work was disciplined for voicing the unorthodox opinion that homosexuality was a disorder that could be treated through counseling. A dental student was sanctioned for saying that "he had heard that minorities had a difficult time in the course and ... were not treated fairly." Charges were filed against a male student who slid a lame sexist joke under the door of a female: "Q. How many men does it take to mop a floor? A. None, it's a woman's job."

In these and other cases, students were punished not because they committed any act, but solely because of the message they expressed. A more blatant disregard of the First Amendment is hard to imagine. "It is firmly settled that ... the public expression of ideas may not be prohibited," Judge Cohn would write, "merely because the ideas are themselves offensive to some of their hearers."

There have long been intimations that members of Michigan's law faculty, including then-Dean Bollinger, helped draft the speech code or gave it their approval. The court decision says the code was written with the aid of "perhaps several University of Michigan Law School professors." The Ann Arbor News reported in 1991 that the "law faculty had given its blessing" to the code. In 1996, one member of the university's board of regents, Deane Baker, recalled that Bollinger had initially advised that the code would pass legal muster, changing his mind only later.

Bollinger insists that he always opposed the code. "I was never silent or ambivalent on the question of whether that particular code was unconstitutional," he said on Wednesday. After the plainly unconstitutional "yellow booklet" was released, he said, he and another professor sent a letter to university administrators urging that the code be repealed. (As of Wednesday, Bollinger's office could not locate a copy of this letter, and the other professor was traveling abroad and unreachable by phone.)

But veterans of the fight against the speech code remember vividly that Bollinger did not speak out publicly until the matter was already in federal court. "He simply kept his mouth shut," said Wesley Wynne, the Michigan teaching assistant who filed the lawsuit for fear that he could be punished if he voiced a controversial opinion in class. "This man was dean of the law school. If anyone was in a position to exercise moral suasion, it was him.... His silence in public was a tacit endorsement of the curtailment" of free speech.

A former Michigan graduate student now teaching at Harvard says that this first major challenge to a speech code "was a time for First Amendment leadership, and Bollinger certainly didn't show any."

Today, Bollinger says he is sure that he spoke out before Wynne's litigation was underway. But in a 1991 letter to the regents, he concedes the opposite. "After the litigation against the code began .... I decided that it was inappropriate to remain completely silent about the matter and publicly stated my belief that the code was in violation of the First Amendment." (my italics)

But at that point, Bollinger was simply joining a fight that others had had the courage to start. Where was his voice when the code was being drafted and debated? And where will he be the next time free speech is in jeopardy on his campus?

Jeff Jacoby is a Boston Globe columnist. Comment on this column by clicking here.

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