Administrators at the University of Wisconsin-Madison should consider contacting legal counsel before launching their ”Stop the Silence” campaign. In the wake of the Rutgers tragedy, higher education circles have been buzzing about creating new policies and programs to curb harassment on campus. My colleague, David French, does an excellent job of deconstructing the pitfalls of the academy’s desire to do “more” after campus tragedies. I won’t repeat his comments, but I do want to point out that the academy is already reacting with “more,” and UW-Madison is taking the lead.
On Columbus Day, UW-Madison launched its “Stop the Silence” campaign, which is designed to curb harassment on campus. A laudable goal – one that federal and state law already amply handle - the campaign’s problems lurk in how Madison will implement it. Dean of Students Lori Berquam says that “bullying and harassment can take many forms, including emotional, verbal, physical and even electronic. At its core, it is aggressive, uncivil behavior designed to hurt or marginalize others.” (emphasis mine). UW-Madison says the new campaign will dovetail with the university’s bias reporting system.
As a university that likes to think of itself as an epicenter of the 1960s student free speech movement, Madison needs a short history lesson before it tramples students’ free speech. Over 20 years ago, the University of Wisconsin System adopted the “Design for Diversity” plan to increase “multi-cultural understanding and greater diversity” in response to “concerns over an increase in incidents of discriminatory harassment.” Pursuant to the plan, the UW System enacted a student code of conduct rule that prohibited
racist or discriminatory comments, epithets or other expressive behavior directed at an individual . . . if such comments, epithets or other expressive behavior or physical conduct intentionally:
1. Demean the race, sex, religion, color, creed, disability, sexual orientation, national origin, ancestry or age of the individual or individuals; and
2. Create an intimidating, hostile or demeaning environment for education . . . .
Two years later, in UWM Post, Inc. v. Board of Regents of the University of Wisconsin System, a federal district court struck down this policy as overbroad.
More recently, a federal court in San Francisco struck down a policy at San Francisco State University that required students to “be civil” to one another. Like the UWM Post decision, the court determined that such a requirement prohibited a vast amount of protected speech. And just last year, the enforcement mechanisms in a ”Stop the Hate” program at Spokane Falls Community College were removed after administrators used it to silence a student’s pro-life speech on campus.
Despite the noble intentions of creating a campus environment where students treat each other nicely and debate each other on contentious social issues rather than stigmatizing those they disagree with (which, oddly enough always reminds me of a Star Trek episode), it seems UW-Madison’s new Stop the Silence campaign is poised to fall like its predecessors. Given the tenacity with which students have challenged UW-Madison policies in court over the years, the administration would do well by treading carefully with their new campaign.
This post originally appeared here.