Firstly, all of us, including administrators and federal bureaucrats
have taken an oath to uphold the U.S. Constitution "all executive and judicial officers, both of the United States and of the several states shall
be bound by oath or affirmation, to support this Constitution." (Article VI,
Paragraph 3). This oath requires acceptance of U.S. Supreme Court
decisions that interpret this Constitution.
"This decision (Marbury v. Madison) declared the basic principle that
the federal judiciary is supreme in the execution of the law of the
Constitution, and that principle has ever since been respected by this
Court and the Country as a permanent and indispensable feature of our
Constitutional system." (Cooper v. Aaron (1958)).
Article I of the Bill of Rights reads as follows: "Congress shall make
no law. . .abridging the freedom of speech, or of the press." Since 1925,
this provision has been binding upon the States through the 14th
Amendment. "Nor shall any State deprive any person of life, liberty, or
property, without due process of law."
I read the subject policy very carefully and noted the absence of any
reference to the First Amendment. I am enclosing articles from the Wall
Street Journal concerning the Harvard Law School's Sexual Harassment
Code. (Appendix A). I should like to especially call attention to Professor
Alan Dershowitz's January 19th letter in which he supports the new code
but states as follows:
"The rules that Harvard Law School finally agreed upon are the most
protective of free speech of any university. . . .They expressly forbid
the imposition of any sanctions for any speech--no matter how sexist or otherwise outrageous--that meets any of the following criteria:
(1) It is 'reasonably' designed or intended to contribute to. .
.public education, academic inquiry or reasoned debate on issues of
public concern,"
(2) "or is protected by the Massachusetts Civil Rights Act,"
(3) "or is protected by the First Amendment."
If such qualifications are good enough for the "real" Ivy, I suggest
they are good enough for this "public" Ivy. At the minimum I would insist on adding to this policy the following qualifications:
(1) The University cannot implicitly or explicitly impose any
sanctions on any faculty member for any speech that is "reasonably"
designed or intended to contribute to public education, academic
inquiry or reasoned debate on issues ofpublic concern.
(2) Nothing in this Policy can conflict with Article 2(a) of Article I
of the California Constitution. "Every person may freely speak,
write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right. A law may not restrain
or abridge liberty of speech or press."
(3) Nothing in this Policy can conflict with Amendment One to the
Constitution as made applicable to the States through the liberty
provision of the due process clause of the 14th Amendment "Congress
shall make no law abridging the freedom of speech, or of the press."
To me it is shocking that this policy, which cites codes, laws, and
executive orders contains not one reference to the underlying Constitution
of California and the United States. I have been informally told that SSU
had no choice but to issue such a document. The federal bureaucracy
insists upon this wording. As I have tried to make clear, the federal
bureaucrats also take an oath to defend the Constitution as interpreted by
the Supreme Court and it is no excuse for our administration to say it's
not their fault.
Now, turning to substance: On page 3, it states "Current case law
provides" for a "reasonable woman" standard. This is not correct. The
latest Supreme Court ruling in Harris v. Forklift 114 S Ct. 367 1993 does
not endorse the reasonable woman standard but rather the reasonable
person standard. In her concurring opinion Justice Ginsburg also accepts
the reasonable person standard. "It suffices to prove that a reasonable
person subjected to the discriminatory conduct would find. . . ."
Let me quote at length from O'Connor's majority opinion. This is the
guiding principle for all of us to follow:
"As we pointed out in Meritor "mere utterance of an epithet which engenders offensive feeling in an employee". . .does not sufficiently affect the conditions of employment to implicate Title VII. Conduct that is not severe or pervasive enough to create an objectively hostile or abrasive work environment--an environment that a reasonable person (underline mine) would find hostile or abusive--is beyond Title VII's purview. This is not and by its nature cannot be, a mathematically precise test.. . .But we can say that whether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances.. . .The effect on the employee's psychological well-being is, of course, relevant to determining whether the plaintiff actually found the environment abusive. But while psychological harm, like any other relevant factor, may be taken into account, no single factor is required."
Note also that on page 3, paragraph 1, the standard peer harassment
within an educational setting is also set forth. This is a vague concept
which needs to be clarified. From the tenor of the document it may mean
that the judge of whether verbal harassment (racial, sexual, religious, disabled, ageism, etc.) has occurred in a classroom is determined from the viewpoint of the victim; i.e., the member of the protected class. It is interesting that nowhere in this policy is there a defense of good faith by the instructor or the student based on what was the instructor's or student's academic intent.
What is a "disparaging comment;" a demeaning comment? Who
determines demeaning? Who determines if a faculty member is more
critical of a student's comments because of disability or sex, etc. rather
than the content of the speech? How is this to be determined; by the
testimony of the victim student, or a review of a videotape of the
professor in the classroom? Are federal bureaucrats or our own
administrators going to be permitted into the classroom to observe
faculty? What does "use of humor" mean? It states that faculty are
responsible for "ensuring that the classroom is free from discrimination."
There is no definition of discrimination. It can be narrowly or broadly
interpreted at the discretion of the bureaucrats and administrators.
If a faculty member criticizes the rationale of the Supreme Court in
Roe v. Wade is that sexist and therefore discriminatory? If a faculty
member comments that the Afrocentrist claim that Greeks stole their
ideas from Black Egypt is not proven, is that racist, and therefore
discriminatory? (See Appendix C). If a biologist states that AIDS is a
controllable disease requiring only avoidance of anal sex, is that
homophobic and therefore discriminatory.? If a criminal justice
professor comments that black jury nullification is a threat to the
integrity of the justice system is that racist and therefore
discriminatory? Under this open ended policy I predict that some
administrators or bureaucrats or even faculty members will say yes
and will then attempt to use the power of the State to punish the speaker.
This Policy is really censorship through intimidation.
Playing devil's advocate, challenging the status quo, trying to
challenge student's preconceived ideas is a part of our mission as
teachers. Are we to teach Critical Thinking but avoid topics of race,
religion, age, sex, ethnic background? There certainly will be a limited
number of topics to discuss, say the price of strawberries versus
radishes. Our students are adults who must be educated to think and
operate in a complex, diverse, irrational and chaotic world.
With this policy the University has laid the groundwork for Thought
Police to take over our classrooms. A senior faculty member says I have
nothing to fear. Our administrators will protect us. My retort is, they
will protect the academic freedom of the faculty the way they defended
Freedom of the Press when students burned the Star several years ago.
This policy will have a chilling effect on Free Speech on this campus.
In my opinion this policy has an implicit premise to it and that is that
the Equal Protection Clause of the 14th Amendment now trumps the First
Amendment Clause. I have heard this argued many times, especially from
Professor Delgado, of the Law School at Colorado (see Appendix B).
At a conference several years ago, Anthony Lewis and Nat Hentoff
debated Delgado on this issue. According to Delgado, the U.S. is so racist,
sexist, anti gay that speech must be punished if it in any way criticizes or
puts down these groups. The only speech he would support would be
campaign speech and speech on minor issues such as zoning laws. The
burning issues of contemporary life such as abortion, feminism, AIDS are
off the table. Catharine MacKinnon of my alma mater, University of
Michigan, has argued long and hard that obscenity is sex discrimination
and must be forbidden and punished. Thus far, she has lost in every
federal court in the country and the Supreme Court has not, in my opinion,
in any case, ever hinted that it might accept the supremacy of the Equal
Protection Clause over Amendment I.
In relation to sex harassment and free speech, the balance between the
two is uncertain as the Supreme Court has been rather unclear as to where
to draw the line. In the University of Chicago Law School's, The Supreme
Court Review, 1994, Richard H. Fallon has a long article entitled: "Sexual
Harassment, Content Neutrality, and the First Amendment Dog that Didn't
Bark." He discusses sexual harassment in the workplace, not in an
academic environment. Our policy assumes they are identical, however.
To consider sexual and racial harassment in an academic environment, we
must consider the unique nature of the university. Let me quote from
Justice Brennan in one of the loyalty oath cases of the 1960's. The opinion
is still the precedent. In Keyishian v. Board of Regents of the University
of the State of New York, 385 US 589, 1967. Brennan writes, declaring
unconstitutional the state's barring of any employee who "by word of
mouth or writing wilfully and deliberately advocates, advises, or teaches
the doctrine of "forceful overthrow of government."
"Our Nation is deeply committed to safeguarding academic freedom, which is of transcen- dent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. . . . The classroom is peculiarly the "market place of ideas."
Brennan continues by quoting from Sweezy v. State of New Hampshire, "No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die."
I am well aware, also, of the attempt by many in the academy and
bureaucracy to claim that comments about sex, race, gays, etc., are not
really speech but verbal behavior. (See page 1 of the Policy, Paragraph 3,
Line 5).
It is ironic that many of those who uphold the burning of an American
flag as symbolic speech turn around and say, as this policy does, that
speech is not speech but verbal behavior which can be stopped or punished
when such words hurt other people because of their race, sex, disabled
status, etc. This was the argument by the President of my Alma Mater,
Michigan, and the President of Wisconsin, now Secretary of HHS, and of
countless other University officials who imposed hate speech codes on
their universities. They were not punishing speech, they were just
punishing verbal behavior. The Federal District Courts have made short
work of these arguments, holding each one in violation of the First
Amendment. What a disaster for academic freedom especially from
Universities with great law schools! We in academia have not protected
our most basic idea, free thought and inquiry. It's been the federal courts
who have had to come to our rescue..
I do not wish to criticize our President or Administrators. They have
a difficult job trying to appease groups both within and without the University, including the federal bureaucracy. I cannot hold them more blameworthy than the President of my Alma Mater. The President has made it clear, especially in regard to merit pay, that he expects high performance from his faculty. In a reciprocal way I think it is time for
the faculty to tell the President what they expect of him and that is
defense of academic freedom and inquiry.
Let me end this portion of my argument by quoting from my favorite
Supreme Court decision, West Virginia Board of Education v. Barnett, the
flag salute case issued during World War II (1943).
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us (Justice Jackson).
I am nearing the end of my academic career and I have been called a communist, bomb thrower, reactionary, negro lover and worse. Through itall I have believed and taught the essence of freedom of thought, speech, press and inquiry. Last February when I was awarded the A.C.L.U. Jack Green Award a young colleague expressed disdain and said I was too concerned with process whereas he wanted to see a world where real equality would be attained and to hell with how that objective was
achieved. This century has seen too many attempts at achieving a utopian
society using dirty and totalitarian means. If this policy is any
indication, Sonoma State is well on its way to a totalitarian future of
thought police, orthodox thinking and the silencing of dissent, all in the
name of ensuring equality. Just remember what has happen in Washington
over the Enola Gay controversy and the cancellations by the Library of
Congress of the Back of the Big House and Freud exhibits. I've heard this
too many times and I will shout stop until the day I retire. You can have
your computers and your "Public Ivy" emblem, but if you don't have real
academic freedom for faculty and students you have not a University but
an indoctrination camp. That I am not alone in these concerns is indicated
by two articles I am enclosing. (See Appendix D).
Finally, I have four additional observations to make (1) This policy,
as far as I can discern, has never been reviewed by the Faculty Union, since it involves working conditions, and may not have been reviewed by faculty governance, (2) I have serious concerns over the lack of due process guidelines and ambiguity in the Procedures attached to this document. For example, on page 2, Paragraph 2 anonymous accusers are permitted. Shades of McCarthyism! Note on page 5, 6, paragraph 1, the
administrator has absolute discretion without any written sentencing guidelines to punish a faculty member with an oral warning through dismissal. Our penal code does not, any longer, give such unfettered discretion to the judge. We should likewise channel the discretion of our superiors. Thirdly, one reason this policy is so insidious is that it combines unobjectionable policy guidelines respecting sexual misbehavior
with the highly contentious issue of verbal communication that may be perceived by some person as discriminatory. The language is so broad, ambiguous and undefined that any faculty member or student can be
accused of discrimination. It reminds me of the discredited Hicklin test for obscenity that judges the material on the basis of the weakest mind into whose hands the material may fall. This policy is similar in that our
academic freedom is to be judged by the most sensitive person in the community! In my judgment, this policy is clearly unconstitutional under both the U.S. and State Constitutions and certainly violates the AAUP standards for academic freedom that I believe the Trustees have adopted. (Appendix E contains several of the AAUP Standards). Lastly, I would argue that this policy is unconstitutional on the grounds of vagueness and overbreadth. See Coats v. Cincinnati (1971). This regulation is
unconstitutionally vague because the term "discrimination" has no boundaries, it subjects the exercise of the right of free speech to an unascertainable standard and it is unconstitutionally broad because it authorizes the punishment of constitutionally protected speech.
What is it that I am asking of the Senate? I am asking the Senate to renegotiate this Policy with the President to ensure the integrity of Academic Freedom at this Institution.
Please send comments or questions toKenneth Marcus