Beginning in the later 1980s, universities and colleges across the land adopted speech codes prohibiting expression that disparages individuals or groups based on their race, ethnicity, sexual orientation, and other characteristics. Because freedom of speech is central to the historic mission of higher education, the new “progressive” form of censorship encountered resistance, especially when it began to be misapplied to viewpoints that merely transgressed from reigning campus orthodoxies.
Between 1989 and 1995, several prominent court decisions struck down codes at such universities as Michigan, Wisconsin, Central Michigan, and Stanford for conflicting with First Amendment principles. And in R.A.V. v. St. Paul (1992), the Supreme Court ruled that basing codes on such categories as race and gender constituted improper viewpoint discrimination. Champions of open discourse applauded the decisions, assuming that the formal rejection of the new codes sounded the death knell of the code movement.
As Jon B. Gould reveals in his important and artful new book, these hopes were dashed. Speak No Evil is the first rigorously empirical analysis of the rise and perpetuation of the speech-code movement in America. Gould sets himself three tasks: to ascertain the politics and motivations behind the adoption of codes, to examine how institutions reacted to the wave of court invalidations, and to explore the implications of this reaction for legal theory.
To understand adoption, Gould combined painstaking quantitative and qualitative research (see Appendix, pp. 189–202). He conducted a random survey of 100 institutions, using factor analysis and other statistical methods, in an attempt to fathom which variables most likely contributed to the rise of codes. Qualitatively, he also performed interviews at eight schools (four pairs) and poured over college guides and other sources to determine the nature and extent of student activism. The “traditional story” claims that codes were wrought by a “vast movement of political correctness” (p. 3). Gould challenges this claim, concluding that administrators adopted codes for three seemingly nonpoliticized reasons based on utilitarian calculations, the desire to follow the lead of more prestigious pioneering schools, and the wish to appease student service administrators.
Even more interesting is the author's analysis of the institutional response to R.A.V. and other decisions. On the basis of semistructured interviews and the examination of archival and press material at 32 institutions, Gould found what can only be described as massive resistance to courts' rulings. Only five of these schools removed questionable codes, whereas 22 kept theirs on the books. Meanwhile, five schools even enacted suspect codes in direct disregard of the constitutional holdings. Colleges and universities largely ignored the courts because “there arose an administrative constituency for the policies' preservation and enforcement” (p. 171).
Gould's finding should not shock students of judicial politics, who have long known that compliance with judicial decisions is not automatic (see, e.g., Gerald Rosenberg's 1999 book, The Hollow Hope: Can Courts Bring About Social Change?). Gould masterfully shows how such resistance points to an important jurisprudential theme: the dynamic tension between formal constitutional law (text and judicial decisions) and popular “mass constitutionalism,” which is the way constitutional law is envisioned and practiced by citizens and institutions in civil society. Often, formal law and mass constitutionalism's “social construction” of the First Amendment are in basic harmony. But resistance can arise when certain conditions prevail, such as when court decisions run counter to entrenched norms and interests (pp. 51–74): “Judicial rulings will be considered legitimate unless a critical mass of opposition arises to a decision” (p. 53).
Gould's analysis of legal theory and the institutional reaction to codes is as illuminating as it is well written. And his findings concerning the politics of codes presents a serious challenge to those who have entertained a considerably less sanguine view of the speech-code movement. The burden is on them to respond. Let me contribute to this response by maintaining that the author is too sanguine about the effect of codes on the climate for free expression on campus.
Even assuming that the origin of codes was less politicized nationwide than the “traditional story” assumes—a conclusion, I believe, that does not adequately portray the rise of codes at the schools that pioneered them, such as Wisconsin, Stanford, Penn, and Michigan—what matters in the end is how codes have been enforced, and whether students and faculty who endorse politically incorrect ideas feel in jeopardy. Gould does discuss enforcement, but his treatment of it is much less developed than his other analyses. There is no evidence that he sought out faculty and students who are the most likely to feel the brunt of codes—conservatives and libertarians who dissent from what Gould admits is liberal sentiment on campus. He writes that the “highest” level of enforcement he found on any single campus was one case per year (p. 175). But as we have learned from the McCarthy and other eras, it only takes one or two prominent cases to spread a chill over an entire campus for a long time.
Furthermore, consistent with Gould's own terminology, one must consider informal as well as formal enforcement actions. I know of cases at my university and elsewhere in which constitutionally suspect codes were deployed by student services administrators to compel students into sensitivity training under the threat of eviction from dorms or expulsion from school. All of these cases took place beneath the radar screen, and were disclosed only by the students themselves. Yet Gould did not talk to any students about the impact of the codes. And he does not discuss another important domain that is a barometer of the status of free speech on campus: the public forum and student newspapers. Berkeley, for example, has not enforced a speech code in recent years, but activists have been busy obstructing conservative speakers and stealing conservative newspapers there with impunity because the administration had other priorities.
One important lesson of this thought-provoking book is that campus leaders have priorities other than intellectual freedom and diversity. Thus, it is incumbent on advocates of free speech to change the campus climate by organizing politically, as has happened at Wisconsin and Penn, to name two schools (see, e.g., Donald Alexander Downs, Restoring Free Speech and Liberty on Campus, 2005). “Although the courts help to establish legal meaning with their decisions,” Gould concludes, “it is just as important to win the battle in civil society by influencing the public's construction of legal and constitutional norms” (p. 10).
