2 weeks Ago By Max M. Schanzenbach, Kimberly A. Yuracko
In a series of widely publicized hearings last year, a U.S. House committee excoriated elite college presidents for their inadequate response to disruptive campus protests and disturbing antisemitism.
Northwestern University President Michael Schill came under strong criticism for settling with pro-Palestinian students. With the new school year upon us, Northwestern has recently announced its commitment to prohibit harmful speech. While clearly intended to appease committee members and keep a lid on campus chaos, any such attempt will have the opposite effect — student speech regulations will be enforced unevenly, increasing tensions and creating legal problems for the university.
In announcing the forthcoming policy changes, Schill acknowledged that “free expression and academic freedom are the lifeblood of our University,” yet it is the substance of speech, not merely its manner of expression, that Northwestern now targets. Northwestern, Schill explains, “will not tolerate behavior or speech that harms members of our community.” Specifically, the statement emphasizes, “there is no room .
.. for antisemitism, .
.. for Islamophobia, .
.. for racism and other forms of identity-based hate.
” Determining what constitutes the prohibited “isms” will not be easy. The Israel-Hamas war has revealed deep disagreements about what constitutes antisemitism. Indeed, Northwestern’s own committee to define antisemitism disbanded after becoming hopelessly deadlocked .
To put it bluntly, Northwestern as an institution is now committed to fighting antisemitic speech, but Northwestern as an institution cannot define it. Schill condemned the chant, “From the river to the sea, Palestine will be free.” Presumably then, these words are forbidden.
What about statements condemning Israel’s creation as a violation of international law? Does the denial of Israel’s right to exist constitute antisemitism? And how is one to know in advance? It is not only antisemitic speech that is difficult to pin down. Are pronouncements that white people are racist now prohibited as racist statements targeting a group? Are arguments for excluding transgender women from women’s sports or prisons transphobic? Certainly, views on either side of these questions could plausibly be said to harm some members of our community. Of added concern is that determinations of which speech is harmful will be made with reference to the race or national origin of both speaker and listener — a clear violation of Title VI’s antidiscrimination prohibition.
Indeed, Northwestern seems to mandate such an approach. Northwestern’s current student handbook says that the university “expects” community members to report incidents of “bias” to a “bias response team.” It then goes on to define biased speech by reference to the “power and privilege” differential between individuals “based on their identity group membership.
” Do Northwestern’s bias bureaucrats consider Jewish students powerful and privileged? Might this explain the lack of action concerning bias incidents after Oct. 7 ? Even if Northwestern can define harmful speech, enforcement will likely be uneven. Last spring, Northwestern failed to punish student conduct that obviously violated its conduct code.
Moving forward, will Northwestern really punish student protesters chanting, “From the river to the sea, Palestine will be free”? What about students who post the phrase on social media? We suspect the university will find itself unable to enforce disciplinary action in the face of concerted student protest. But students with minority views, those unable to rally protests, those whom administrators find unsympathetic, will not be similarly protected. Related Articles Commentary | Eli J.
Finkel: The failings of the Chicago Principles when it comes to free speech Commentary | Law professors: Universities’ shifting policies toward speech are not only hypocritical but also illegal Commentary | Michael Schill: Here’s why I reached an agreement with Northwestern protesters What should Northwestern, and other universities, do instead? Simply embrace the First Amendment standard of speech as the University of Chicago, Stanford, Washington, Carnegie Mellon and others have done. Under a First Amendment standard, the classroom is not a free speech zone, but student demonstrations and student-sponsored speakers are protected and subject only to reasonable time, place and manner restrictions. While hateful and indeed hurtful speech is permitted under the First Amendment, chaos need not be tolerated.
The private universities that have committed to First Amendment principles have managed to run inclusive institutions. More importantly, almost 75% of college students are educated at public institutions, which have been subject for more than 50 years to the First Amendment . Public universities have not just managed to get by; casual observation suggests they weathered the prior year better than most elite private schools.
Faculty members and students who cannot appeal to their university’s punitive administrative apparatus to settle disputes may actually learn to more peacefully coexist. We are not yet privy to exactly how Northwestern plans to monitor and discipline its community for harmful speech. The devil will be in the details.
Perhaps a committee will be formed to advise on words and phrases that cannot be uttered — perhaps it will be more successful in doing so than the antisemitism committee. Perhaps the new policies will be only a paper tiger because enforcement will be impossible. Most likely, speech will be silenced, enforcement will be uneven, and campus chaos will continue.
The chill is already in the air. Max M. Schanzenbach is the Seigle Family professor of law, and Kimberly A.
Yuracko is the Judd and Mary Morris Leighton professor of law at the Northwestern University Pritzker School of Law. Submit a letter, of no more than 400 words, to the editor here or email [email protected] .
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