February 18, 2004

And Now For Something Completely Different

Well, not quite--I see my colleague Prue Schran has joined the conversation about Swarthmore and speech. Actually, I quite agree with a lot of her observations--they're relevant to what I was writing about in "A Pox on Both Houses", as well as some older posts at Easily Distracted about the conservatives-in-academia question. But attitudes and formal speech policy are absolutely not the same thing, and if attitudes rather than policy are the issue, the lever that will move them really is subtle, sympathetic moral and intellectual suasion, or at least that's my feeling. Feeling restricted or ostracized by the pervasive attitudes or unspoken orthodoxies of colleagues is very different than being formally restrained by a quasi-legal code--though of course the existence of the former phenomenon is why it is hard to trust to any procedures outlined in formal policy.

There's also the more arcane issue of how to untangle policies on harassment and speech. I think FIRE is overly sanguine both about how easy it is to disaggregate them, either legally or conceptually. Also, O'Connor offers some extra tricky arguments on top of that about the alleged legal invulnerability of academic institutions to federal employment law (is that really true? Where's the Volokh Conspiracy when you need it?) and the legal freedom of colleges and universities to restrict speech if they want unless they otherwise claim that they're not restricting speech, in which case O'Connor sees them as open to legal claims of fraud. At that point my head spins a bit: if colleges have published speech codes or harassment policies which O'Connor and FIRE say clearly and unrestrainedly restrict freedom of speech, and O'Connor acknowledges that colleges and universities are legally free to do so, then by their reading, wouldn't a charge of fraud be legally untenable? Where's the fraud if you have a published speech code that restricts speech and you're legally free to do it? Unless, of course, the kind of thing I've been suggesting is true, that there is a reading of many college policies as also trying, authentically, to promise academic freedom, and that it is the authenticity of that intent which makes its contradiction by speech codes potentially fraudulent.

Maybe this is an indication that the only solid ground for challenging speech codes is a moral or ethical one--that we shouldn't have codes because they're wrong to have, because liberty is the bedrock value of academic life, and leave the legal issues aside. That's certainly one of FIRE and O'Connor's most salient consistent observations, that whatever their merits or problems on paper, faculty- or administration-authored speech codes are basically a case of amateurs meddling in the construction of bodies of pseudo-law, hoping to direct the power of a quasi-state entity (their institution) to regulate local behavior.

Anyway, on to more diverting things. A couple days ago, my toddler and I found a great new thing at Noggin's website, called ScribbleVision. Basically, you color in a bunch of things and then ScribbleVision animates your colorings in a series of scenes featuring the hand-puppet characters Oobi and Grampu. It's one of those things that will very rapidly have the adults taking the mouse away from the kids. I was especially proud of my scene of Sauron's Lidless Eye dawning over Oobi's house, with a demonic rooster crowing in the background. Let's say that my impression of Oobi and Grampu's animated actions and expressions changed somewhat against that backdrop.