Diversity and Inclusion are
the watchwords of American colleges and universities. Pick any top 20 ranked national university, for
example, my alma mater, Washington University.
Open its home page.
Click on “Campus Experience”
and scroll down to “Diversity and Inclusion.”
Read Chancellor Mark
Wrighton’s statement. “Making the
university more diverse and inclusive is not an option. It is an imperative.”
Similar web pages and
declarations are presented on the vast majority of every university’s web site. Indeed, diversity and inclusion are defined
as a core value of the university’s mission.
A typical definition of
diversity and inclusion reads as follows.
“We are committed to ensuring
that "our school" is a community where everyone is valued and respected. Hate, bias, and discrimination are to be
rejected. "Our school" does not discriminate in access to, or treatment or employment in, its programs and activities on the basis of race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, veteran status, disability, or genetic information.
So far, so good.
But inclusion surely doesn't mean every culture, tradition, or practice.
For example, no respectable university would want to have among its faculty or student body those who espouse "honor killings."
Or those who support beheadings for "blasphemy."
Or gay-bashers.
Or Ku Klux Klan members.
Or Anti-Semites.
Or genuine Nazis.
Where is the line to be drawn between inclusion and exclusion? No university of which I am aware has compiled a comprehensive list of excludables. Admittedly, this is not an easy task. At some point, exclusion and freedom of expression will clash.
If a Constitutional Convention was called for the limited purpose of considering the "Bill of Rights," how many would survive intact? The first would be curtailed to reduce "hate speech." The second might be eliminated, as former Supreme Court Justice John Paul Stevens recommended on March 27, 2018. The Ninth and Tenth ceased to be effective a long time ago. The Third would be deemed outdated. The Fourth and Eighth would be relaxed in the name of national security. That was easy. So too for all the other Amendments.
What follows is the text of an article that appeared in Palo Alto Online over 23 years ago on March 3, 1995.
STANFORD: Hate speech code struck down
Judge rules that Stanford's prohibitions are unconstitutional
A Santa Clara County
Superior Court judge ruled Tuesday that Stanford University's prohibition
against hate speech is unconstitutional.
The code was crafted in
1990 after some students defaced a poster with racist caricatures, but it has
never been invoked on campus. The code prohibits speech or actions that are
discriminatory forms of harassment against individuals.
A group of students sued
the university after it was adopted.
University officials had no
immediate comment about a possible appeal, saying they first had to read the
decision by Judge Peter Stone.
President Gerhard Casper
was out of town this week.
"The speech code is
contrary to everything Stanford should stand for in free discourse," said
former law student Rob Corry, who argued the lawsuit for himself and eight
other students in court.
Corry said Stanford
students rejected the speech code by a large margin in a non-binding 1990
referendum.
"We were thrilled by
the court's decision," Corry said. "This is a victory not only for
Stanford students but for students all across the country."
While the speech code had
never been invoked since its adoption, Corry said it had "a chilling
effect" on students. "If a forbidden word crosses your lips,
theoretically you can be expelled," he said."
Judge Stone ruled that
Stanford's code violated the First Amendment, which guarantees free speech. In
his decision, Stone ruled that Stanford's standard is too broad. He also
endorsed a state law that guarantees free speech to students at private
universities.
In his decision, Stone
quoted from a 1949 Supreme Court case, Terminiello v. Chicago,
stating that speech could not be prohibited "unless shown likely to
produce a clear and present danger of serious substantive evil that rises far
above public inconvenience, annoyance or unrest."
The speech code was
contained in a 1990 extension of Stanford's "Fundamental Standard," a
conduct code. The Fundamental Standard was established in 1896 by David Starr
Jordan, Stanford's first president.
The standard states:
"Students are expected to show both within and without the university such
respect for order, morality, personal honor, and the rights of others as is
demanded of good citizens. Failure to observe this will be sufficient cause for
removal from the university."
After considerable debate
by the Faculty Senate, the university adopted in 1990 what became known as the
Grey Interpretation of the standard, after Thomas Grey, a law professor who
wrote it. It was the Grey Interpretation that was stricken down. The
university's Fundamental Standard is still in place.
The Grey Interpretation
upheld the right to free expression, except when it involves harassment on the
basis of sex, race, color, handicap, religion, sexual orientation, or national
or ethnic origin.
The Grey Interpretation had
expressly forbidden the use of "fighting words."
Stanford chose not to
appeal the decision. That was then. Things are different now.
