email print
Blog Post

Shouting fire in a crowded campus

AEIdeas

The following is the latest in a series of blog posts accompanying newly-released Bradley Lectures Podcast episodes. The subject of this post is “Speech codes, bureaucracy, and the ‘shadow university,’” an episode examining Alan Kors’s 1998 Bradley Lecture, “The betrayal of liberty on America’s campuses.”

Who has the power on America’s college campuses?

Power could be in the hands of the upper echelons of the university administration, with the President, board members, and other officers who oversee fundraising and the institution’s direction. Or it might reside with the donors who hold the purse strings.

Maybe the professors who design curricula and lecture hundreds of students each day are the truly powerful ones; perhaps it is activist students, who are greatest in number and have been known to express opposition, often righteous and justified and sometimes less so, to campus policies and current events through sit–ins, die–ins, teach–ins, and the occasional armed occupation of university buildings. Though they lack institutional power, students have often succeeded in efforts to bring new disciplines into the mainstream and shift the focus of certain areas of study, altering the very trajectory of the American academy.

Surely this depends on what is meant by ‘power.’ But there’s a great irony to this entire exercise, as University of Pennsylvania professor Alan Kors points out in his 1998 Bradley Lecture: College students (and faculty) who in the course of their academic pursuits seem obsessed with discovering who has power and understanding and altering the mechanisms of its distribution, ignore the answer that is plainly in front of them.

A contingent of Occupy Cal demonstrators, in support of Occupy Wall Street, listens as UC Berkeley professor and former U.S. Secretary of Labor Robert Reich speaks on the steps outside Sproul Hall in Berkeley, California November 15, 2011. REUTERS/Stephen Lam.
A contingent of Occupy Cal demonstrators, in support of Occupy Wall Street, listens as UC Berkeley professor and former U.S. Secretary of Labor Robert Reich speaks on the steps outside Sproul Hall in Berkeley, California November 15, 2011. REUTERS/Stephen Lam.

So, where exactly does campus power increasingly lie? A vast, largely hidden, and unaccountable bureaucracy of mid-level administrators, Kors answers. Those most responsible for a college’s culture, rules, and modes of reward and punishment are provosts, vice–provosts, and assistants to the vice president for diversity and inclusion. In Kors’s words, they constitute a “shadow university” which can do just about whatever it wants in pursuit of a more socially-just campus — even if it involves squelching Constitutionally-protected freedoms.

Ironies about when power goes unexamined aside, the story of a powerful bureaucracy imposing capricious codes of conduct is a serious one. How the bureaucracy came to play its role and how its actions continue to shape the American campus are more important still.

Kors, who went on to co-found the free-speech advocacy group Foundation for Individual Rights in Education (FIRE), traces the proliferation of the shadow university to labor law and universities’ attempts to ward off litigation (and the associated bad press) by preempting, with codes of speech and conduct, any behavior that could be construed as discriminatory or insufficiently inclusive. Fear of litigation led college administrators to “lawyer up” with attorneys and non-attorneys alike charged with policing student conduct before any controversy might arise.

Several high-profile violations of campus speech codes soon arose. Among the most notable was the 1993 “water buffalo incident” at Kors’ own University of Pennsylvania, in which Kors defended a student who was accused of harassment for referring to a group of mostly-black sorority sisters making noise outside his dormitory as “water buffaloes.” The epithet, it turns out, had been lost in translation, “water buffalo” being the English version of a Hebrew slang term for a rowdy person. Charges were dropped, but the case demonstrated to Kors how speech codes could ruin lives, and he set out building his base of evidence to argue that these campus policies were unfair and potentially destructive.

The definition of controversial conduct quickly became expansive to the point of parody, and Kors builds his case ad absurdum with examples of speech codes regulating facial expressions, “symbols, epithets, or slogans” that imply “any negative connotation,” or anything that “a person feels has affronted him or some group.”

The shady bureaucracy may wield the gavel in adjudicating cases arising from speech codes, but Kors points to something much deeper about who really has the power — or, more accurately, where power comes from in this new paradigm of justice. It comes from feeling — whoever feels that they have been aggrieved, offended, victimized.

Which itself may point to a different center of power altogether — power belongs to whomever wants to take it.

Tal Fortgang is a senior research associate at AEI’s Social, Cultural, and Constitutional Studies department and is the host of the Bradley Lectures Podcast.