February 17, 2004

Thanks for Playing

Well, at least this time, Erin O’Connor has it really wrong.

Swarthmore has no speech code. The community specifically rejected having a speech code when we considered the issue. We specifically insisted that speech which might be regarded by some as offensive is non-adjudicable, and underscored that the college administration can bring no sanction against individuals for what they say regardless of how offensive it might seem to others.

There is only one way that speech can be an adjudicable issue at Swarthmore, and that is if it is part of a repeated, persistent attempt by one individual to personally harass another individual. The standards for this are very precisely enunciated in our policy on general harassment. You cannot generically harass a social group or identity. There is no one-time instance of general harassment—a single statement cannot be taken by one individual to represent an act of general harassment by another individual directed at them: it must be persistent and repeated.

Our sexual harassment policy, from which O’Connor draws almost all of her quotes, was adopted at a different point from our general speech and harassment policy, and I agree has a few emphases which differ from the overall policy, in that it states that it is possible for a one-time action to represent a “hostile environment” against which someone might have a grievance. Three things are worth noting about this policy, however. First, the general speech policy supercedes it, as I understand things, e.g., the specific protections granted free speech are the most important policy dictates we have on this subject, and the sexual harassment policy does not contradict or contravene those protections. Second, the sexual harassment policy contains an important qualifier which O’Connor notably fails to cite: “The perception of conduct or expression as harassing does not necessarily constitute sexual harassment”, and goes on to state that every complaint must be carefully examined on its own merits. No statement or idea or expression is categorically identified, outside of the context of a specific complaint, as prohibited or punishable. A grievant is directed to ask a perceived harasser to stop, and if they do not do so, is given the option to pursue a grievance procedure—but there is no a priori finding that any given expression creates a hostile environment. Third, I would note that aspects of this policy take the form that they do in order to achieve compliance with existing federal law on sexual harassment: if there is an issue here, it is an issue whose locus is far beyond this campus.

This is not to say that I’m entirely comfortable with the content of this specific policy: I found it overly broad in several respects when the faculty voted on it, and I’m especially concerned about the ways a “hostile environment” standard can and has been misused on college campuses—but it is specifically the “hostile environment” standard which federal law has legitimated. To expressly repudiate it in college policy is an invitation to a devastating liability claim against the college at some future date, because it would place the college at odds with a clear body of legal precedent. (When institutions or employers lose such lawsuits, it is often precisely on the grounds that they were made aware of a hostile environment and did nothing to correct it. Were we to state outright that we reject that a hostile environment can actually exist, we’d be wide open to such a finding.)

Still, I have to stress again that the impression O’Connor gives about even this aspect of the sexual harassment policy is downright wrong even beyond her mischaracterization of it as an overall policy governing speech. A Swarthmore student or member of the faculty expressly cannot be punished merely for saying something that has the characteristics described in the sexual harassment policy—which O’Connor implies. There is nothing adjudicable unless there is a grievance from a specific grievant, and that grievance must meet the specific test of being harassment with specifically sexual intent. John Ashcroft couldn’t file a grievance against Arthur Schlesinger under Swarthmore policy unless he thought Schlesinger was making a quid-pro-quo demand for sexual favors from Ashcroft or if Schlesinger was making Swarthmore a hostile working environment in a sexually demeaning way. (Since neither of them work here, the hostile environment standard wouldn’t apply in any event.)

Let me quote from the Swarthmore College policy statement on uncivil or demeaning non-harassing speech, since O’Connor didn’t see fit to share this with her readers (although speechcodes.org does reprint this policy in full):

“As a member of Swarthmore College, one's moral responsibilities extend beyond formally sanctionable conduct. All of us, therefore, have a responsibility not to indulge in gratuitous offensive expression just because it may not be subject to official sanctions. Anonymous offensive expression is generally inexcusable, but the risk of harm in making adjudicable all forms of offensive expression would not only outweigh the benefits of official proscription, it would also seriously endanger academic freedom."

"Even when individuals (or groups) admit authorship, however, they act irresponsibly if they are unwilling to engage in a defense of their views, especially with those targeted. Perpetrators of alleged non-adjudicable but uncivil expression should engage the objects of their attacks through discussion and, possibly, mediation. If they do not, however, no disciplinary action will be taken, though College officials or anyone else may publicly decry the content and manner of such expression."

"It needs stressing again that the College will in no way formally discourage any argument, provided it does not include threats of violence, though what is said may be deplorable and very possibly more diatribe that argument. “

That’s not a speech code. It’s the antithesis of a speech code. It’s a specific protection extended to speech, and a specific forbidding of judicial and quasi-judicial forms of sanction against speech by the administration or the community.