February 27, 1996

TO: Academic Senate

FROM: Kenneth Marcus, Professor, Dept. of Criminal Justice Administration

SUBJECT: Presidential Policy on SSU Policy on Affirmative Action and Non-Discrimination dated January 2, 1996

It has come to my attention that Senator Victor Garlin introduced this item at a recent Senate meeting. He did so on my request so I think it is appropriate that I communicate directly to you my concerns about this policy. I have been told that this is not a new policy, it is just acompilation of older policies placed into operation upon the direction of the Federal bureaucrats. I'm not impressed.

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

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PJ 3/5/96